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ELCPartially AllowedNotice of Motion dated 10th May 2018 (suit number not stated in judgment)· [2020] KEELC 2750 (KLR)

Mary Njeri Kabundi v Christine Mithiri Mbugua & 2 others [2020] KEELC 2750 (KLR)

Environment and Land Court
7 May 2020
1,615 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kiambu landowner won the right to join a land case affecting his property, but the court kept a 2009 caveat blocking any sale until full trial.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Thika by L. Gacheru J, delivered online on 7th May 2020, determined a Notice of Motion dated 10th May 2018 by Mbai Barnard Mwangi seeking to be joined as an interested party in a land suit and to have lifted an inhibition/caveat issued on 7th December 2009 over L.R No. Ndumberi/Riabai/3825, one of six parcels restrained pending hearing. The Applicant averred he was the registered owner (having acquired proprietorship in 2008) but was never made a party nor served before the inhibition was registered against his title in December 2009, leaving him condemned unheard and unable to transact. The 2nd Defendant opposed, contending the Applicant gave no documentary proof of interest and could not seek substantive orders before joinder. The Court, guided by Order 1 Rule 10(2) of the Civil Procedure Rules and the Supreme Court's definition of an interested party in the Communications Commission of Kenya case, found the Applicant proved his interest via title deed and official search, that he was a necessary party given his pre-caution proprietorship, and that no prejudice would result since all other purchasers of the subdivisions were already parties. Joinder was allowed. However, the Court found no satisfactory reason advanced to lift the inhibition orders, which were obtained regularly, and disallowed that prayer entirely, deferring questions of fraudulent acquisition to the main trial. The application was allowed in terms of prayer 1 only, with costs in the cause.

Key legal issues

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01

Whether the Applicant should be enjoined as an interested party

Holding

Yes - the Applicant proved interest as registered owner of the suit property and is a necessary party for effectual adjudication; no prejudice would be occasioned by the joinder.

Reasoning

The Applicant annexed a title deed showing he is the registered owner of L.R 3825 and an official search evidencing the caution registered on 8th December 2009. He acquired proprietorship in 2008, before the caution, so he had interest at the time and was not heard. All other purchasers of the subdivisions are already parties, so no prejudice results. Order 1 Rule 10(2) and the Supreme Court's definition of an interested party support the joinder.

p. 2
02

Whether the inhibition/caveat orders over L.R 3825 should be lifted

Holding

No - the prayer is disallowed entirely as no satisfactory reason was advanced.

Reasoning

The Court found that the orders of inhibition were obtained regularly and that the Applicant did not give any satisfactory reason why they should be lifted. Mere assertion of ownership, without more, did not justify discharge of the restraint; the question of fraudulent acquisition could only be determined at the main trial after evidence is called.

p. 3

Legal principles established

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  • An interested party is one with a stake in the proceedings who will be affected by the decision of the court either way
  • Amendments and joinder should be freely allowed at any stage provided no prejudice or injustice that cannot be compensated in costs results to the other party

Court orders

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  1. 1.The Applicant Mbai Barnard Mwangi is joined as an interested party in the suit
  2. 2.Prayer No. 2 for lifting of the order of inhibition/caveat over L.R No. Ndumberi/Riabai/3825 is disallowed entirely
  3. 3.Costs of the application to be in the cause
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, "Mary Njeri Kabundi v Christine Mithiri Mbugua & 2 others [2020] KEELC 2750 (KLR)", Case Analysis (2020). Notice of Motion dated 10th May 2018 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2750/eng@2020-05-07

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