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ELCPartially AllowedMachakos ELC No. 92 of 2013 (O.S)· [2020] KEELC 3147 (KLR)

Meshack Nyamberi & 60 others v Sarah Kathumbi Mulwa & 7 others [2020] KEELC 3147 (KLR)

Environment and Land Court
13 March 2020
OAO. A. Angote
1,879 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that anyone who buys or lends against land while a court case over it is ongoing must be joined to that case.

What this practically means

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Executive summary

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Before the Environment and Land Court at Machakos were two applications by the Plaintiffs seeking the joinder of three Intended Defendants. The Plaintiffs had purchased sub-divisions of parcel Mavoko Town Block 3/1968 from the 4th Defendant and sought a declaration that they are proprietors as purchasers for value. They sought to enjoin the 6th Intended Defendant, who acquired a sub-division of the suit property (Mavoko Town Block 3/36365) during the pendency of the suit following a consent settlement in Machakos ELC No. 311 of 2017, and the 7th Intended Defendant, the chargee of that sub-division for a loan of Kshs. 20,000,000. The 8th Intended Defendant was sought to be joined pursuant to a Ruling in Mavoko SPMCC ELC No. 13 of 2018. The 6th Intended Defendant opposed, asserting that it purchased for value with due diligence, that the Plaintiffs had no locus standi or cause of action, and that its land was a distinct parcel. Applying King'ori vs Chege and Zephir Holdings, Angote J held that the 6th and 7th Intended Defendants were necessary parties because their interests in sub-divisions of the mother title would be affected by any order the court made, and the 6th Intended Defendant had issued a demand letter requiring the Plaintiffs to vacate. However, the 8th Intended Defendant's joinder was refused because the Mavoko suit had been struck out and no proprietary interest was demonstrated. The court allowed both applications in part, enjoined the 6th and 7th Intended Defendants, directed filing of a Further Amended Plaint within fourteen days, and ordered costs of the applications to be in the cause.

Key legal issues

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01

Whether the 6th and 7th Intended Defendants are necessary parties

Holding

Joinder allowed. The 6th Intended Defendant acquired a sub-division of the suit property (Mavoko Town Block 3/36365) during the pendency of the suit and charged it to the 7th Intended Defendant for Kshs. 20,000,000; any order touching the mother title would affect their interests

Reasoning

The court perused the official search confirming registration of the 6th Defendant on 7 January 2015 and the charge to the 7th Defendant on 2 July 2018, both during the pendency of the suit. The 6th Intended Defendant had also issued a demand letter requiring the Plaintiffs to vacate, raising a dispute over entitlement. Applying King'ori vs Chege and Zephir Holdings, both were necessary parties who must be heard before the court pronounces on the dispute.

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Whether the 8th Intended Defendant should be enjoined

Holding

Refused. The Mavoko SPMCC ELC No. 13 of 2018 suit was struck out and no proprietary interest was demonstrated

Reasoning

The basis for joinder of the 8th Intended Defendant was the Ruling in Mavoko SPMCC ELC No. 13 of 2018, but that suit had been struck out and therefore did not exist. Further, the Plaintiffs annexed no documents showing the 8th Intended Defendant's proprietary interest in the suit property, so no basis for joinder was established.

p. 3

Legal principles established

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  • The guiding principles for joinder of a party: he must be a necessary party; he must be a proper party; the ultimate order or decree cannot be enforced without his presence; and his presence is necessary to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit
  • The court has a wide discretion to order suo moto the impleadment of a party whose presence is necessary to enable it effectively and completely adjudicate and settle all questions in the suit
  • A party who acquires an interest in the suit property during the pendency of the suit (lis pendens) should be joined so that any order affecting the mother title binds the proprietors of the sub-divisions

Court orders

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  1. 1.The 6th and 7th Intended Defendants be and are hereby enjoined in this suit as Defendants
  2. 2.The Plaintiffs to file and serve the Further Amended Plaint enjoining the 6th and 7th Defendants in this suit within fourteen (14) days of this Ruling
  3. 3.The costs of the two Applications to be in the cause

Authorities

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Cases cited (2)

  • King’ori vs. Chege & 3 Others
    (2002) eKLR
  • Zephir Holdings Limited vs. Mimosa Plantations Limited & Others
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; the court also invoked its Ruling in Machakos ELC No. 311 of 2017 directing the Plaintiffs to prosecute ELC No. 92 of 2013

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, "Meshack Nyamberi & 60 others v Sarah Kathumbi Mulwa & 7 others [2020] KEELC 3147 (KLR)", Case Analysis (2020). Machakos ELC No. 92 of 2013 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3147/eng@2020-03-13

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