Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherLand Case No. 40 of 2019· [2020] KEELC 2206 (KLR)

Agricultural Development Corporation v Michael Wangila Makawa & 159 others [2020] KEELC 2206 (KLR)

Environment and Land Court
29 May 2020
MNMwangi Njoroge
1,596 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to strike out a land suit filed by a parent company, ruling the correct party—its subsidiary—could simply be added instead.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J) on a preliminary objection dated 13/11/2019 raised by the 160 defendants in a suit by the Agricultural Development Corporation. The plaintiff, a state corporation, sought confirmation of an interim injunction restraining the defendants from LR Nos 4140/3, 6106/4/7136/5, 7155, 7156, 7156/7, 7156/9-11, 7156/14-16, 9437 and 9439, forming Japata Farm of approximately 6302 acres, alleging trespass and interference with agricultural operations. The defendants, claiming to be descendants of colonial labourers resident on the land since the 1960s, opposed the injunction and raised a preliminary objection that the plaintiff had no locus standi to sue on behalf of its subsidiary, Lands Limited, which holds the titles, contrary to the rule in Salomon v Salomon, supported by Omondi v National Bank Kenya Ltd, Edwin Makanyanga Mwangale v Moses Wafula Khaoya and Foss v Harbottle. The plaintiff relied on Order 1 Rules 9 and 10 of the Civil Procedure Rules and the Medisel Kenya Ltd and Tullow Oil decisions, arguing that no suit is defeated by misjoinder or non-joinder and that a preliminary objection cannot lie where facts must be ascertained or discretion exercised. The court upheld the objection but, rather than striking out the suit, ordered that Lands Limited be enjoined as co-plaintiff and the plaint amended, with costs of the objection in the cause.

Key legal issues

#
01

Locus standi of a parent company suing over land held by its subsidiary

Holding

The court acknowledged the objection to the plaintiff's capacity where the property belongs to its subsidiary, but declined to strike out the suit, instead invoking the joinder provisions to enjoin Lands Limited as co-plaintiff

Reasoning

The defendants admitted a close principal-subsidiary relationship between the plaintiff and Lands Limited, distinguishing the Omondi and Edwin Makanyanga cases where directors or an individual had sued. Order 1 Rule 9 precludes defeating a suit for misjoinder or non-joinder, and Order 1 Rule 10(2) permits joinder of the correct party where the suit was instituted through a bona fide mistake. Striking out was therefore disproportionate.

p. 2
02

Effect of Order 1 Rule 9 and Order 1 Rule 10(2) of the Civil Procedure Rules

Holding

The court applied the joinder provisions, ordering that Lands Limited be enjoined as co-plaintiff and the plaint amended

Reasoning

The court found itself empowered under Order 1 Rule 10(2) to order joinder where satisfied that the suit was instituted in the name of another party through a bona fide mistake and that joinder was necessary for determination of the real matter in dispute. Rule 9 barred defeat of the suit for misjoinder, making striking out a draconian course the court would not take.

p. 2

Legal principles established

#
  • No suit shall be defeated by reason of misjoinder or non-joinder of parties; where a suit is instituted in the name of the wrong party through a bona fide mistake, the court may order joinder of the correct party rather than strike out the suit
  • A preliminary objection cannot succeed where any fact has to be ascertained or where the court would be exercising judicial discretion

Court orders

#
  1. 1.The preliminary objection is upheld
  2. 2.Lands Limited shall be enjoined as a co-plaintiff alongside the existing plaintiff and the plaint shall be appropriately amended to reflect that order
  3. 3.Costs of the preliminary objection shall be in the cause

Authorities

#

Legislation

  • Civil Procedure ActSection 63(c)
  • Civil Procedure RulesOrder 40 Rules 1 and 4
  • Civil Procedure RulesOrder 1 Rule 8
  • Civil Procedure RulesOrder 5 Rule 17
  • Civil Procedure RulesOrder 51 Rules 1 and 3
  • Civil Procedure RulesOrder 1 Rule 9
  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (6)

  • Salomon v Salomon
    1895-99 ALL E.R. 33
  • Omondi and another v National Bank Kenya Ltd and 2 Others
    (2001) KLR 579
  • Edwin Makanyanga Mwangale v Moses Wafula Khaoya
    2016 eKLR
  • Foss v Harbottle
    1843 67 ER 189
  • Medisel Kenya Ltd v Pharmacies and Poisons Board and another
    Nairobi HCCC 555 of 2008
  • Tullow Oil Plc & Others v PS Ministry of Energy and Others
    Supreme Court Application No. 4 of 2018
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Civil Procedure Act (Section 63(c)) and Civil Procedure Rules (Order 1 Rules 8, 9, 10; Order 40 Rules 1 and 4)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Agricultural Development Corporation v Michael Wangila Makawa & 159 others [2020] KEELC 2206 (KLR)", Case Analysis (2020). Land Case No. 40 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2206/eng@2020-05-29

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