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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 5th October 2020)· [2021] KEELC 256 (KLR)

Agabatus Ogalo Okoth v Lawrence Morty Opiyo Okeloo; Collins Omondi Achilles & 2 others (Intended Interested Parties) [2021] KEELC 256 (KLR)

Environment and Land Court
8 October 2021
GOG M A Ongondo
1,280 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed two people to join a land dispute as interested parties but refused to remove the caution blocking the land title until the main case is heard.

What this practically means

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Executive summary

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By a Notice of Motion under section 73(1) of the Land Act, the 1st and 2nd intended interested parties sought to be joined to this suit, to have a restriction lodged by the plaintiff over parcel KABUOCH/KONYANGO/KOBONYO/KARITA/755 removed, and a notice to show cause why the caution should not be removed. The applicants, a purchaser for value and a son of the defendant, complained that the plaintiff had irregularly caused a caution to be lodged in February 2020 on the basis that a suit over the land was pending, blocking their titles and inheritance. The plaintiff opposed, deposing that he bought a portion of the land, paid the full purchase price, facilitated succession and subdivision, and desired to prosecute his suit. The court first clarified that the applicants really sought joinder rather than an injunction, and held the application properly before the court. Applying Order 1 Rule 9 on mis-joinder and non-joinder, Articles 48, 50(1) and 25(c) of the Constitution, and the overriding objective under the Civil Procedure Act and the Environment and Land Court Act, the court found the application partially merited: the joinder prayer was allowed so the interested parties could shed light on the restriction, but the prayers for removal of the restriction and for a notice to show cause were disallowed. Costs were ordered to be in the cause.

Key legal issues

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01

Whether the applicants should be joined as interested parties

Holding

Joinder allowed; the applicants were properly before the court and no party would be prejudiced

Reasoning

The court construed the term 'enjoin' and concluded the applicants really sought joinder. Guided by Order 1 Rule 9 on mis-joinder and non-joinder, the constitutional guarantees of access to justice and fair hearing, and the overriding objective, the court held that bringing the applicants on board would serve the best ends of justice and prejudice no one.

p. 3
02

Whether the restriction/caution on the suit parcel should be removed at this stage

Holding

Refused; the removal prayers were disallowed

Reasoning

The court found the application only partially merited. Although the applicants complained the restriction subsisted while the suit was unprosecuted, the court declined to order removal or issue a notice to show cause, leaving the substantive question to be dealt with in the main suit.

p. 3

Legal principles established

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  • A party cannot be prejudiced by joinder where the application is properly before the court; mis-joinder or non-joinder does not defeat a suit
  • It is the duty of the court to ensure a respondent is made aware of a matter by service; the respondent may then elect to appear or not

Court orders

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  1. 1.Prayer No. 2 for joinder of the applicants/interested parties is allowed
  2. 2.Prayers 3 and 4 seeking removal of the restriction and notice to the respondent/plaintiff are disallowed
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Land Act No. 3 of 2012Section 73(1)
  • Land Registration ActSection 78(2)
  • Civil Procedure Rules, 2010Order 51 Rule 16; Order 1 Rule 9
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33
  • Constitution of Kenya, 2010Articles 48, 50(1), 25(c)
  • Civil Procedure Act Chapter 21Sections 1A, 1B, 3, 3A
  • Environment and Land Court ActSections 3 and 19(2)

Cases cited (2)

  • Nyagah Nderi vs James Nyaga Kinyua
    2012 eKLR
  • Ogada-vs-Mollin
    (2009) KLR 620
Jurisdiction invoked
Section 73(1) of the Land Act No. 3 of 2012; sections 3 and 19(2) of the Environment and Land Court Act, 2015; sections 1A, 1B, 3 and 3A of the Civil Procedure Act

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, "Agabatus Ogalo Okoth v Lawrence Morty Opiyo Okeloo; Collins Omondi Achilles & 2 others (Intended Interested Parties) [2021] KEELC 256 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 5th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/256/eng@2021-10-08

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