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ELCDismissedEldoret ELC (Notice of Motion dated 25th October 2021) - suit commenced by plaint dated 16th March 2015· [2021] KEELC 189 (KLR)

Isaac Mwangi Wainaina v Willy Kiberenge & 22 others [2021] KEELC 189 (KLR)

Environment and Land Court
20 December 2021
SKS. M. Kibunja
2,230 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's bid to rejoin a case he was already party to, calling it an abuse of process.

What this practically means

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Executive summary

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Joseph Kiprono Birgen moved the Environment and Land Court at Eldoret by notice of motion dated 25th October 2021 seeking to be enjoined as 22nd defendant, to set aside all proceedings so the suit could commence de novo, and to file a defence and counterclaim. He claimed he had purchased 1.6 acres in 2000, developed it, and acquired title by adverse possession, alleging the plaintiff had inadvertently sued him as 'Kiprono Kibore' while he was away serving in the KDF. The plaintiff and the 21st defendant opposed, pointing out that the applicant was already on record as the 14th defendant and had participated in the suit through counsel since 2015. The court framed three issues: whether the applicant was already a party, whether he was a necessary party, and costs. Relying on Order 1 Rule 10(2) of the Civil Procedure Rules and the overriding objective in sections 1A and 1B of the Civil Procedure Act, the court held the applicant was already the 14th defendant who had signed pleadings through authorised representatives and participated up to the close of the defendants' case on 31st May 2021. The application was therefore an abuse of process. The court further found the applicant had not identified the parcel he allegedly purchased, produced no documentary evidence, annexed no draft defence and counterclaim, and that his real dispute was with David Njogu Wainaina, who was not a party. The notice of motion was dismissed with costs to the plaintiff and the 21st defendant.

Key legal issues

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01

Whether the applicant, sued as Kiprono Kibore, was already a party and could be joined afresh as 22nd defendant

Holding

The applicant is already a party as the 14th defendant; the joinder application was an abuse of process

Reasoning

The applicant had been sued as Kiprono Kibore, signed pleadings through authorised representatives, instructed counsel, and participated through the close of the defendants' case on 31st May 2021. His proper remedy was to correct his name early, not to seek joinder as a new party months after closing his case.

p. 3
02

Whether the proceedings should be set aside to allow the applicant file a defence and counterclaim

Holding

No, as the applicant failed to establish any interest in the suit land capable of supporting the prayer

Reasoning

The applicant did not specify the parcel description of the land he allegedly bought, produced no documentary evidence, and no draft defence and counterclaim was annexed as claimed. His alleged claim lay against David Njogu Wainaina, who is not a party to the suit. Further, setting aside proceedings would delay a suit governed by the overriding objective under sections 1A and 1B of the Civil Procedure Act.

p. 3

Legal principles established

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  • The court's discretion to join a necessary party may be exercised at any stage of the proceedings but must be exercised judiciously

Court orders

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  1. 1.The applicant's notice of motion dated the 25th October, 2021 is dismissed
  2. 2.Costs of the application awarded to the plaintiff and the 21st defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure Act, Chapter 21, Laws of Kenyasections 1A, 1B, 1A(3), 27
  • Constitution of Kenya, 2010Article 159(2)(b)

Cases cited (4)

  • Pravin Bowry v John Ward & Another
    [2015] eKLR
  • Civicon Ltd v Kivuwatt Ltd & 2 Others
    [2015] eKLR
  • Kenya Wildlife Service v James Mutembei
    [2019] eKLR
  • John Gakure & 148 Others v Pharmaceuticals Company Ltd & 7 Others
    C.A. Civil Application No. 299 of 2007
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, "Isaac Mwangi Wainaina v Willy Kiberenge & 22 others [2021] KEELC 189 (KLR)", Case Analysis (2021). Eldoret ELC (Notice of Motion dated 25th October 2021) - suit commenced by plaint dated 16th March 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/189/eng@2021-12-20

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