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ELCPartially AllowedNot stated in judgment· [2020] KEELC 2502 (KLR)

Menelik House Limited v John Mbugua;Francis Odumbe Osodo (Proposed Interested Party) [2020] KEELC 2502 (KLR)

Environment and Land Court
21 May 2020
1,072 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court allowed a man claiming ownership of Nairobi land to join an ongoing suit, but refused to lift an existing injunction protecting the current titleholder.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 26th September 2018 by Francis Odumbe Osodo, the proposed interested party, seeking his enjoinder to a land suit over LR No. 1/580/Nairobi along Ngong Road, leave to file a defence, and the setting aside or staying of orders issued in respect of the property. The application was opposed by the plaintiff through replying and further affidavits sworn by its director, Jane Agoki, who relied on the court's ruling of 13th March 2013 declaring it the registered proprietor, and on the indefeasibility of title under Section 26 of the Land Registration Act, 2012. The applicant claimed beneficial ownership by transmission from his late parents, alleged the plaintiff forged the sale and transfer documents, and argued his joinder was necessary for complete adjudication and protection of his property rights under Article 40 of the Constitution. The court framed three issues: joinder, setting aside the injunction, and costs. Applying Order 1 rule 10(2), the court held the applicant a necessary party who ought to be heard, and allowed joinder with leave to file a defence, list of documents and witnesses within sixty days. However, applying Order 40 rule 7, it declined to set aside the injunction granted on 18th December 2018, holding that the applicant was not a party when it was made and no sufficient grounds existed for the court to review its own orders. Costs of the application were awarded against the interested party. The application was therefore allowed only in part.

Key legal issues

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01

Joinder of the proposed interested party

Holding

He is a necessary party given his claimed beneficial ownership and allegation of forgery of the sale documents

Reasoning

The applicant claims beneficial ownership by transmission from his late parents and alleges the plaintiff forged the sale and transfer documents. Since his presence enables the court to settle all questions in the suit and he has a right to defend his interest in the property, joinder under Order 1 rule 10(2) was warranted.

p. 2
02

Setting aside the injunction of 18th December 2018

Holding

Refused; the applicant was not a party to the proceedings when the injunction was granted

Reasoning

Under Order 40 rule 7, an injunction may be discharged or set aside on application by any party dissatisfied with the order. The applicant was not a party when the order was made, and no sufficient grounds were advanced; the court declined to arbitrarily review its own orders.

p. 2
03

Costs of the application

Holding

Costs to be borne by the interested party

Reasoning

Having succeeded only in part on his application, the interested party was ordered to bear the costs of the application, the substantive suit being unaffected at this interlocutory stage.

p. 2

Legal principles established

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  • A person whose presence is necessary to enable the court effectually and completely adjudicate on all questions in a suit may be added as a party at any stage
  • A non-party cannot ask the court to arbitrarily review or set aside an injunction order made inter partes

Court orders

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  1. 1.The proposed interested party is enjoined as a party to the suit
  2. 2.Leave granted to the proposed interested party to file a defence, list of documents and/or witnesses within sixty (60) days from the date of the ruling
  3. 3.Costs of the application to be borne by the interested party

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
  • Civil Procedure Rules, 2010Order 22 Rule 22
  • Civil Procedure Rules, 2010Order 40 Rule 7
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Land Registration ActSection 26
  • Constitution of Kenya, 2010Article 40

Cases cited (5)

  • Gichinga Kibutha vs Caroline Nduku
    [2018] eKLR
  • John Bosco Muinde Kamali & Others vs Stephen Kaliti & Another, Muasya M Makai & 9 Others (proposed interested parties)
    [2019] eKLR
  • Shirvling Supermarket Ltd vs Jimmy Ondicho Nyabuti & 2 Others
    [2018] eKLR
  • Deported Asians Property Custodian Board vs Jaffer Brothers Ltd
    [199] 1EA 55 (SCU)
  • Meme vs Republic
    [2004] KLR 637
Jurisdiction invoked
Sections 1A, 1B, 3, 3A Civil Procedure Act; Order 1 Rule 10(2), Order 22 Rule 22, Order 40 Rule 7, Order 51 Rule 1 Civil Procedure Rules, 2010

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, "Menelik House Limited v John Mbugua;Francis Odumbe Osodo (Proposed Interested Party) [2020] KEELC 2502 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2502/eng@2020-05-21

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