Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2020] KEELC 1923 (KLR)

Republic v Ndoro Ritho & 2 others; Jamii Bora Bank (Intended Interested Party) Ex-Parte Samuel Kanja Kinunu [2020] KEELC 1923 (KLR)

Environment and Land Court
8 May 2020
ECE.C. Cherono
1,251 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court let a bank join a land case and cancelled an earlier ruling made without hearing it.

What this practically means

#

Executive summary

#
The Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) delivered judgment on 8 May 2020 on a Notice of Motion dated 7 July 2019 brought by Jamii Bora Bank under Section 36, Rule 10, Order 51 Rule 1 and Order 1 of the Civil Procedure Rules and Sections 1A and 1B of the Civil Procedure Act. The Bank sought to be enjoined as a party to the proceedings and to have the ruling of 20 January 2015 by Hon. Lady Justice H.I. Ong'udi, which conferred title to L.R. No. MWEA/MUTITHI/SCHEME/121 on Samuel Kanja Kinunu, set aside. The Bank deponed, through its Legal Manager Christine Wahome, that it had advanced Ksh. 24,500,000 to Martin Robin Kinuthia secured by a legal charge over the suit property; that after default it exercised its statutory power of sale, selling the property by public auction on 14 September 2017 to James Ndungu Kabiru for Ksh. 15,500,000; and that the Kirinyaga District Land Registrar had refused to effect the transfer, prompting judicial review proceedings in Misc. Application No. 3 of 2018 (Kerugoya) seeking mandamus. It was in the Registrar's replying affidavit that the Bank first learned of the 20 January 2015 ruling, which had the effect of reverting the land to Samuel Kanja Kinunu. The Bank contended the orders were issued without according it a hearing. The application was unopposed; no responses were filed by the Respondents. The Court applied Rules 2 and 7(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, holding that joinder is discretionary and the test is whether the applicant has an interest or stake in the case and whether the orders sought would directly and legally affect it. Finding the Bank had such an identifiable stake, the Court enjoined it as a party, set aside the ruling of 20 January 2015, directed the Interested Party to file and serve its response within 14 days, and ordered the costs of the application to be costs in the cause.

Key legal issues

#
01

Joinder of an interested party in proceedings before the Court

Holding

The Bank, whose charge over the suit property secured a loan and whose interests would be directly affected by the ruling of 20 January 2015, was properly enjoined as an interested party.

Reasoning

The Court applied Rule 2 defining an interested party and Rule 7(2) allowing joinder. It held joinder is discretionary, exercised judicially, aimed at enabling the Court to deal with the matter and avoiding multiplicity of suits. The Bank had a identifiable stake: it advanced Ksh. 24,500,000 secured by a charge over L.R. No. MWEA/MUTITHI/SCHEME/121 and its power of sale was exercised, so the orders sought would directly and legally affect it.

p. 2
02

Setting aside of a ruling issued without according an affected party an opportunity to be heard

Holding

The ruling of 20 January 2015 conferring title on Samuel Kanja Kinunu was set aside, the Bank having established that the orders were issued without according it an opportunity to be heard and that its collateral interest was thereby affected.

Reasoning

The Court found that the 20 January 2015 ruling had the effect of reverting the suit land to Samuel Kanja Kinunu, yet the Bank later advanced a loan secured by the same property and exercised its statutory power of sale. The Bank deponed that the orders were issued without according it an opportunity to be heard as required in law, and the application was unopposed by the Respondents.

p. 2

Legal principles established

#
  • An application for joinder is discretionary and the test is whether the applicant has an interest or stake in the case and whether the orders sought would directly and legally affect the party seeking to be enjoined.

Court orders

#
  1. 1.The Applicant, Jamii Bora Bank be and is hereby enjoined as a party to this suit
  2. 2.The Ruling of this Honourable Court delivered on 20 January 2015 by Hon. Lady Justice H.I. Ong'udi conferring the title property Land Reference No. MWEA/MUTITHI/SCHEME/121 to Samuel Kanja Kinunu be and is hereby set aside
  3. 3.The costs of this application to be costs in the cause
  4. 4.The Interested party to file and serve their response to these proceedings within 14 days

Authorities

#

Legislation

  • Civil Procedure RulesSection 36; Rule 10; Order 51 Rule 1; Order 1
  • Civil Procedure ActSections 1A and 1B
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2; Rule 7(2)
Jurisdiction invoked
Sections 36, Rule 10, Order 51 Rule 1 and Order 1 of the Civil Procedure Rules; Section 1A and 1B of the Civil Procedure Act; Rule 2 and Rule 7(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Ndoro Ritho & 2 others; Jamii Bora Bank (Intended Interested Party) Ex-Parte Samuel Kanja Kinunu [2020] KEELC 1923 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1923/eng@2020-05-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.