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ELCDismissed· [2021] KEELC 567 (KLR)

Hannah Mumbi Kariuki v Milcah Wanjiru Mwiri Kamau & another [2021] KEELC 567 (KLR)

Environment and Land Court
29 November 2021
MOMOGENI
3,440 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Land Court refused to remove a defendant from a property dispute, confirming that being a named party depends on the dispute's full resolution, not formal innocence.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nairobi by Mogeni J dealt with two interlocutory applications arising from a dispute over Plot No. Dagoretti/Riruta/S.378. The plaintiff, Hannah Mumbi Kariuki, claimed to be the rightful beneficial owner of the plot on which she resides and sought temporary and mandatory injunctions restraining the defendants from selling, transferring or alienating it, citing her pending regularization application before the National Land Commission. The 1st Defendant, an elderly widow, opposed, asserting the land was registered in her late husband's name and formed part of his estate in Succession Cause No. 588/2017, in which a grant was issued in 2019. The 2nd Defendant, Elijah Mwega, who operates an NGO, applied under Order 1 Rule 10(2) to have his name struck out as a misjoinder, denying any interest in the property or any threats against the plaintiff. The plaintiff did not respond to that application and, notably, did not attend court on several mention dates. The court declined to consider the plaintiff's application for want of prosecution. On the strike-out application, the court held that despite being unopposed, it had to independently assess the merits, citing the Supreme Court's decision in Gideon Sitelu Konchellah. Applying the necessary-party test in Amon v Raphael Tuck & Sons Ltd and noting that the plaint disclosed triable issues including alleged collusion to dispossess the plaintiff, the court found the 2nd Defendant to be a properly joined necessary party whose innocence could only be determined at a full hearing. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether an unopposed application must be granted automatically

Holding

No - the court has a duty to assess the merits of even unopposed applications

Reasoning

Relying on the Supreme Court decision in Gideon Sitelu Konchellah v Julius Lekakeny ole Sunkuli, the court held that although the 2nd Defendant's application was unopposed, the court remains duty-bound to consider the prayers sought and make its own findings before granting relief.

p. 4
02

Whether the 2nd Defendant is a necessary and properly joined party

Holding

Yes - the 2nd Defendant was not improperly enjoined; the application to strike him out was dismissed

Reasoning

Applying Order 1 Rule 10(2) and the test in Amon v Raphael Tuck & Sons Ltd, the court held that the plaintiff's plaint raises triable issues against the 2nd Defendant, including allegations of collusion in a threatened sale of the suit property, and his innocence or otherwise can only be determined at a full hearing.

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Whether the plaintiff's application dated 22/07/2021 would be considered

Holding

No - the court declined to consider it because the plaintiff failed to prosecute it or attend court

Reasoning

The plaintiff failed to attend court on multiple mention dates (20/09/2021, 27/10/2021) and did not attend when the 2nd Defendant's application was heard on 15/11/2021. The court therefore limited its findings to the 2nd Defendant's application.

p. 4

Legal principles established

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  • An unopposed application does not automatically succeed; the court must still satisfy itself that the application is meritorious
  • A person is a necessary party where the questions in the action cannot be effectually and completely settled unless he is a party

Court orders

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  1. 1.The 2nd Defendant's Notice of Motion dated 19/10/2021 seeking removal of his name from the suit is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 1 Rule 10(2); Order 40 rules 1, 3, 4(1) and 5
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (5)

  • Geila v Cassman Brown
    [1973] EA
  • Peter Ngugi Kabiri v Esther Wangari Githinji & another
    [2013] eKLR
  • Gideon Sitelu Konchellah v Julius Lekakeny ole Sunkuli & 2 Others
    [2018] eKLR
  • Amon v Raphael Tuck & Sons Ltd
    (1956) 1 All ER 273
  • Pizza Harvest Limited v Felix Midigo
    [2013] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act Cap 21; Order 1 Rule 10(2) and Order 40 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

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, "Hannah Mumbi Kariuki v Milcah Wanjiru Mwiri Kamau & another [2021] KEELC 567 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/567/eng@2021-11-29

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