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ELCDismissedKisii HCCC (ELC) suit – applications dated 15th November 2019 and 23rd January 2020· [2020] KEELC 2336 (KLR)

Kenya Farmers Association v Khatia Drapers Limited & 3 others [2020] KEELC 2336 (KLR)

Environment and Land Court
28 May 2020
2,843 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kisii refused to let a land claimant add new parties and fresh claims eight years into a case, calling it abuse of process.

What this practically means

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Executive summary

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This ruling by J.M Onyango of the Environment and Land Court at Kisii, delivered on 28th May 2020, disposed of two contested interlocutory applications prosecuted together by written submissions. The Plaintiff, whose claim over land parcel KISII MUNICIPALITY/BLOCK 111/143 had been pending since 2012, sought leave to enjoin Prime Bank Limited and the Attorney General as 3rd and 4th Defendants and to amend the Plaint to plead compensation, general and punitive damages. The 1st Defendant opposed, pointing to a previous dismissed application for joinder, an earlier suit against Prime Bank (HCCC No. 94 of 2004) dismissed for want of prosecution, an unexplained delay of about 8 years, a departure from the original cause of action, and limitation and Government Proceedings Act bars. The court applied Order 8 rule 3 and Order 1 rule 10(2) and the amendment principles in Coffee Board of Kenya v Thika Coffee Mills and Rubina Ahmed, and refused both joinder and amendment, terming the application an abuse of process. The 1st Defendant's application to strike out its own name from the suit, based on indefeasibility of title under sections 25 and 26 of the Land Registration Act and bona fide purchaser principles in Katende v Hardirar, was refused because the fraud issues raised belong at trial, per D.T Dobie v Muchina. Both applications were dismissed with costs in the cause.

Key legal issues

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01

Joinder of additional parties and amendment of pleadings

Holding

Refused: the joinder was an abuse of process after a prior refusal and prior dismissed suit, the amendment was a departure from the original cause of action, unexplained 8-year delay, prejudice to the 1st Defendant, and limitation/Government Proceedings Act bar

Reasoning

Order 8 rule 3 and Order 1 rule 10(2) confer a wide but judicious discretion. Applying the Mulla/Coffee Board principles and the Court of Appeal decision in Rubina Ahmed, unexplained delay, prejudice, defeat of accrued limitation rights and abuse of process outweighed the Plaintiff's wish to sue Prime Bank and the Attorney General. The court also relied on its earlier ruling by Mutungi J refusing joinder of other parties.

02

Striking out the 1st Defendant from the suit

Holding

Refused: issues of bona fide purchase and indefeasibility of title under the Land Registration Act are matters for trial, not summary determination

Reasoning

While sections 25 and 26 of the Land Registration Act confer indefeasible title subject to fraud, and Katende v Hardirar sets out bona fide purchaser requirements, the court applied D.T Dobie v Muchina: strike-out powers must not be used to determine merits. The pleaded fraud allegations and the Plaintiff's Order 1 rule 10(2) submissions required a full hearing.

p. 4

Legal principles established

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  • The court's wide discretion on amendment of pleadings must be exercised judiciously, having regard to delay, prejudice and whether the amendment introduces a new cause of action
  • The power to strike out parties or pleadings must be exercised with caution and without embarking on the merits
  • Repeated applications to enjoin parties already refused or previously sued, without appeal or review, amount to abuse of court process

Court orders

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  1. 1.Both the application dated 15th November 2019 and the application dated 23rd January 2020 are dismissed
  2. 2.The costs of both applications shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rule 3(1)
  • Civil Procedure RulesOrder 8 rule 3(5)
  • Civil Procedure RulesOrder 1 rule 10(2)
  • Registered Land Act (repealed)section 77(3)
  • Land Registration Actsection 25
  • Land Registration Actsection 26
  • Land Registration Actsection 80
  • Government Proceedings Actnot specified
  • Limitation of Actions Actnot specified

Cases cited (5)

  • Coffee Board of Kenya V Thika Coffee Mills Limited & 2 Others
    (2014) eKLR
  • Rubina Ahmed & 3 others
    (2019) eKLR
  • Katende v Hardirar & Company Limited
    (2008) 2 E.A 173
  • D.T Dobie v Joseph Mbaria Muchina & Another
    (1982) KLR 1
  • Mulla, the Code of Civil Procedure, 18th Ed, Vol 2
    pages 1751-1752
Jurisdiction invoked
Civil Procedure Act and Civil Procedure Rules (Order 1 rule 10(2) and Order 8 rule 3) as read with the court's original civil jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Farmers Association v Khatia Drapers Limited & 3 others [2020] KEELC 2336 (KLR)", Case Analysis (2020). Kisii HCCC (ELC) suit – applications dated 15th November 2019 and 23rd January 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2336/eng@2020-05-28

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