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ELCAllowedChamber Summons dated 14th August, 2018 arising from a suit commenced by Plaint dated 24th March, 2018· [2020] KEELC 2680 (KLR)

Kalondu Kyambo (Suing in her capacity as the legal representative of the Estate of Kyambo Ngata (deceased) v Peter Wanjohi Kamau (Sued as the Liquidator of Drumvile Farmers Co-operative Society Ltd) & another; Albert Athanas Makau Kyambo (Proposed Interested Party) [2020] KEELC 2680 (KLR)

Environment and Land Court
8 May 2020
OAO.A. Angote
1,526 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (O.A. Angote J) on a Chamber Summons dated 14th August, 2018 by Albert Athanas Makau Kyambo seeking joinder as an Interested Party in a suit concerning ownership of land known as Athi River/Athi River Block 5/112. The Applicant, son of the late Kyambo Ngata and former Legal Administrator of the deceased's estate, deponed that the Society amalgamated his share with his father's in 1978 without his knowledge; that his father was allocated two parcels under an erroneous impression that he held two sets of shares; and that the suit property was excluded from the Certificate of Confirmation of Grant because it belonged to the Applicant. The Plaintiff, his step-brother who sued as legal representative of the deceased, opposed the application, maintaining the deceased held two shares entitling him to both parcels. The Defendants did not respond. Applying Order 1 Rule 10(2) of the Civil Procedure Rules, and drawing on Sarkar's Code of Civil Procedure, Tanga Gas Distributors Ltd v Said, Meme v Republic and Mbaki v Macharia, the court held that the joinder power should be interpreted liberally, may be exercised at any stage, and that the Applicant - as sole administrator of the estate and a claimed owner of the suit property - was a necessary party whose presence would settle all questions and prevent proliferated litigation. The court allowed the application, joining the Applicant as an Interested Party or Defendant, directing him to file and serve pleadings within sixty days, with each party bearing their own costs.

Key legal issues

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01

Whether the Applicant is a necessary party to the suit

Holding

The Applicant was joined because he is the sole administrator of the deceased's estate and claims ownership of the suit property; his joinder will settle all questions and prevent proliferated litigation.

Reasoning

The court found the Applicant was appointed Legal Administrator of the deceased's estate and the suit property was not included in the Certificate of Confirmation. The Plaintiff admitted the Applicant was sole administrator and that the suit property was not part of the estate. Given the Applicant's ownership claim and his administrative role, joinder as Interested Party or Defendant was necessary for complete adjudication.

p. 2
02

Scope of the court's power under Order 1 Rule 10(2)

Holding

The rule should be interpreted liberally and widely, permitting joinder of all persons necessary for complete adjudication at any stage.

Reasoning

Relying on Sarkar's Code of Civil Procedure and Tanga Gas Distributors Ltd, the court held that the joinder power may be exercised before, during, or even after trial, and only becomes inapplicable once proceedings are fully disposed of with nothing more to be done.

p. 2

Legal principles established

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  • The power of the court to add a party to proceedings can be exercised at any stage of the proceedings.
  • A person may be joined where his presence will result in complete settlement of all questions, protect rights of a party otherwise adversely affected, and prevent proliferated litigation.
  • The right to be heard is a valued right; it would offend notions of justice to prejudice a party's rights without hearing him.

Court orders

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  1. 1.The Applicant, Albert Athanas Makau Kyambo be and is hereby joined in these proceedings either as an Interested Party or a Defendant
  2. 2.The Applicant to file and serve his pleadings within sixty (60) days of the Ruling
  3. 3.Each party to bear his own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (4)

  • Tanga Gas Distributors Ltd vs. Said & Others
    (2014) E.A 448
  • J M K vs. M W M
    (2015) eKLR
  • Meme vs. Republic
    (2004) 1 EA 124
  • Mbaki & Others vs. Macharia & Another
    (2005) 2 EA
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules

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, "Kalondu Kyambo (Suing in her capacity as the legal representative of the Estate of Kyambo Ngata (deceased) v Peter Wanjohi Kamau (Sued as the Liquidator of Drumvile Farmers Co-operative Society Ltd) & another; Albert Athanas Makau Kyambo (Proposed Interested Party) [2020] KEELC 2680 (KLR)", Case Analysis (2020). Chamber Summons dated 14th August, 2018 arising from a suit commenced by Plaint dated 24th March, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2680/eng@2020-05-08

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