Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2021] KEELC 1598 (KLR)

Stephen Macharia Ngugi v Peter Kamau Munene & 3 others [2021] KEELC 1598 (KLR)

Environment and Land Court
7 October 2021
BEB M Eboso
1,471 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiff sued by plaint dated 5/10/2017 over land parcel Dagoretti/Kinoo/2467, which he had agreed to sell to the 1st defendant for Kshs 13,000,000 under an agreement dated 22/10/2014. He alleged that before paying the 10% deposit, the 1st defendant fraudulently procured transfer of the property to himself and then conveyed it to the 2nd defendant. He sought cancellation of the title to the 2nd defendant or, alternatively, Kshs 20,000,000 as current value, mesne profits at Kshs 54,000 per month, general damages, costs and interest. The 2nd defendant denied liability, claiming to be a bona fide purchaser for value who paid Kshs 5,000,000, and counterclaimed. The 3rd and 4th defendants denied the allegations; the 4th defendant, an advocate, denied drawing or witnessing the sale agreement and asserted forgeries. By notice of motion dated 12/10/2020, the 4th defendant sought striking out of the suit against him as scandalous, frivolous and vexatious and disclosing no cause of action, citing the absence of an advocate/client relationship and his exoneration by the Advocates Disciplinary Tribunal. The court framed a single question: whether the 4th defendant was a necessary party for the effectual and complete adjudication of all questions in the suit. Answering affirmatively, Eboso J held that the ADT ruling was not categorical on agency, evidence on the law firm's ownership and staff was inconclusive, and the 4th defendant could assist the court on the fraud and forgery claims. The application was rejected with costs in the cause.

Key legal issues

#
01

Whether the 4th defendant is a necessary party for the effectual and complete adjudication and settlement of all questions involved in the suit

Holding

Yes. Given the plaintiff's allegations of fraud and forgery centring on the 4th defendant's law firm, and the absence of conclusive evidence on ownership of the firm and the advocates engaged by it at the material time, the 4th defendant should remain a party.

Reasoning

The plaintiff alleged the transfer of the suit property was fraudulently procured and that completion documents were deposited with the 4th defendant's law firm. The 4th defendant asserted the signatures and the 'drawn by' expression on the agreement were forgeries and denied retainer. The ADT ruling did not determine whether the 4th defendant's co-accused acted as his servant or agent, and evidence on the firm's ownership and staff at the material time was inconclusive. The 4th defendant could therefore assist the court on the fraud and forgery questions, and removing him would not serve the interest of justice.

p. 2

Legal principles established

#
  • A party is not to be struck out where his presence is necessary for the effectual and complete adjudication of all questions in the suit, particularly where allegations of fraud revolve around his firm and the question of agency is unresolved.
  • An acquittal by the Advocates Disciplinary Tribunal does not conclusively resolve questions of agency/servitude in related civil proceedings.

Court orders

#
  1. 1.The application dated 12/10/2020 is rejected
  2. 2.Costs of the application shall be in the cause

Authorities

#

Legislation

  • Advocates ActNot specified (allegations of professional misconduct)

Cases cited (2)

  • Dr Vijay Kumar Saidha & Dr Uma Saidha v Tribuhuran Gordhan Barkrania & another, Nairobi Civil Appeal No. 9 of 2007
    Nairobi Civil Appeal No. 9 of 2007
  • Kimaiyo Kiptangula & Peter G Munya t/a Kimaiyo & Munya Advocates v Kenya Pipeline Limited, Civil Appeal No. 637 of 2011
    Civil Appeal No. 637 of 2011
Jurisdiction invoked
Not expressly stated; suit filed under a plaint dated 5/10/2017 in the Environment and Land Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Stephen Macharia Ngugi v Peter Kamau Munene & 3 others [2021] KEELC 1598 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1598/eng@2021-10-07

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