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ELCAllowedOriginating Summons dated 14th January 2014 (Bungoma)· [2020] KEELC 3872 (KLR)

Charles Munga Kipsang v Patrick Telewa Nabiswa & another [2020] KEELC 3872 (KLR)

Environment and Land Court (High Court)
30 January 2020
1,775 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court froze all dealings on disputed land and added the new owner to the case, showing land bought during a lawsuit can still be pulled into it.

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 Bungoma (Boaz N. Olao, J) on a Notice of Motion dated 12th June 2019 filed by Charles Munga Kipsang, the plaintiff in an Originating Summons claiming three-quarters of an acre of parcel East Bukusu/North Sang'alo/967 by adverse possession, founded on a sale agreement dated 14th March 1980. Pending the suit, the defendant Patrick Telewa Nabiswa subdivided the land into three portions, retaining 6572 and transferring 6573 and 6574 to Saul Wekesa Nyongesa. The plaintiff sought joinder of Nyongesa as Co-Respondent, amendment of the summons, and an inhibition over all three parcels. The court applied Order 1 Rule 10(2) of the Civil Procedure Rules, holding that the court may add any person whose presence is necessary to effectually and completely adjudicate on all questions, and that the transferee of the subdivided parcels should be joined to avoid being condemned unheard. Relying on Section 68(1) of the Land Registration Act, the court held an inhibition was warranted because portions had already been alienated during the suit, while criticising the plaintiff's delay in prosecuting his claim. The application was allowed: Nyongesa was enjoined as 2nd Respondent with timelines for filing the amended summons and response; an inhibition was issued over the three parcels pending determination; costs were in the cause.

Key legal issues

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01

Joinder of a transferee of subdivided portions of the suit land

Holding

The proposed Co-Respondent, now proprietor of resultant sub-divisions, was properly enjoined as 2nd Respondent to avoid condemning him unheard and to allow complete adjudication

Reasoning

The Respondent admitted subdividing the suit land during the pendency of the suit and transferring two portions to the proposed Co-Respondent. Under Order 1 Rule 10(2) CPC the court may add a person whose presence is necessary to settle all questions. Since any judgment in the Originating Summons would affect the transferred parcels, joinder protected the Co-Respondent's right to be heard and caused no prejudice.

p. 2
02

Entitlement to an order of inhibition under Section 68(1) of the Land Registration Act

Holding

Inhibition granted because portions had already been transferred pending suit and further dealings would prejudice the Applicant

Reasoning

An inhibition, like a prohibitory injunction, restrains registration of dealings in disputed land. The Applicant showed the Respondent had subdivided and transferred portions during the suit. Although the court criticised the Applicant's delay in prosecuting the suit, it found inhibition necessary to preserve the parcels pending determination.

p. 3

Legal principles established

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  • The court has power, even suo motu, to add any person as a party whose presence is necessary to effectually and completely adjudicate on all questions in the suit
  • Before making an inhibition order the court must be satisfied the land is at risk of disposal or alienation to the detriment of the applicant, which would render the suit academic

Court orders

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  1. 1.Saul Wekesa Nyongesa be and is hereby enjoined in this suit as the 2nd Respondent; the amended Originating Summons be filed and served upon him within 14 days of the ruling
  2. 2.The 2nd Respondent shall have 14 days from service of the amended Originating Summons to file and serve his response
  3. 3.An order of inhibition restraining the Respondents, their servants or agents from transferring, sub-dividing or registering any dealings with parcels EAST BUKUSU/NORTH SANG'ALO/6572, 6573 and 6574 (originally 967) pending hearing and final determination of the suit
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 3 and 3A
  • Land Registration ActSections 68(1) and 69
  • Civil Procedure RulesOrder 1 Rule 10(2); Rule 10

Cases cited (1)

  • Central Kenya Ltd v Trust Bank & Others
    C.A Civil Appeal No 222 of 1988
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act, Sections 68 and 69 of the Land Registration Act and 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, "Charles Munga Kipsang v Patrick Telewa Nabiswa & another [2020] KEELC 3872 (KLR)", Case Analysis (2020). Originating Summons dated 14th January 2014 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3872/eng@2020-01-30

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