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ELCPartially AllowedNot stated in judgment (Application dated 14th June 2021)· [2021] KEELC 1689 (KLR)

Tomito Tankoi & 9 others v Chief Land Registrar & 3 others; Moses Lemsahon Korinko & 2 others (Interested parties) [2021] KEELC 1689 (KLR)

Environment and Land Court
7 October 2021
2,236 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Environment and Land Court at Kilgoris (Emmanuel M. Washe, J) determined a Notice of Motion dated 14th June 2021 by three proposed interested parties – former members of the defunct Shartuka Group Ranch – seeking to be enjoined in a petition concerning the subdivision of Trans-Mara/Shartuka/1. The applicants were registered owners of parcels Trans-Mara/Shartuka/774, 405 and 209 respectively, and relied on Order 1 Rule 10(2) of the Civil Procedure Rules, the Environment and Land Court Act and constitutional provisions. The application was unopposed, as the Petitioners filed no response, but the court held it still had to be satisfied that the Muruatetu criteria for joinder were met: an identifiable and proximate personal interest, demonstrated prejudice from non-joinder, and a distinct case not replicating other parties. On the first and third principles the court found all applicants discharged the burden. On prejudice, however, only the 1st and 2nd proposed interested parties succeeded: their titles (774 and 405) were expressly listed among the titles the Petition sought to cancel under Section 143 of the Registered Land Act and to restrain. The 3rd proposed interested party's parcel (209) was not challenged; the stay of his suit (Narok ELC No. 509 of 2017) merely avoided conflicting decisions, and he would suffer no prejudice once the stay was lifted. The court enjoined the 1st and 2nd proposed interested parties, dismissed the 3rd's application, directed the enjoined parties to file and serve pleadings within 21 days, and ordered costs be in the course.

Key legal issues

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01

Whether the 1st and 2nd Proposed Interested Parties demonstrated a proximate personal interest

Holding

Yes – their registered ownership of parcels 774 and 405 creates an identifiable interest proximate to the Petition's subject matter.

Reasoning

The applicants' affidavit shows they are registered owners of parcels Trans-Mara/Shartuka/774 and 405. Registration confers proprietary interests, and any determination in proceedings initiated by others that affects those parcels touches their rights. The court found this burden properly discharged.

p. 3
02

Whether the 1st and 2nd Proposed Interested Parties demonstrated prejudice

Holding

Yes – their titles are among those the Petitioners seek to cancel and permanently restrain, so non-joinder would deny them a fair hearing.

Reasoning

The main Petition's prayers for a permanent injunction and for cancellation of listed title deeds include parcels 774 and 405. Determination of the Petition without their participation would affect the very existence of their titles and deny them the right to be heard on merit.

p. 4
03

Whether the 3rd Proposed Interested Party demonstrated prejudice

Holding

No – his parcel 209 is not challenged in the Petition and his stayed suit will resume once the stay is lifted.

Reasoning

The Petition's list of challenged titles does not include parcel 209. The stay of his suit merely avoids conflicting decisions by courts of concurrent jurisdiction; once lifted, his case will be heard on merit, so non-joinder causes no prejudice.

p. 4
04

Whether the applicants set out the case they intend to make

Holding

Yes, for the 1st and 2nd Proposed Interested Parties – their grounds, affidavit and proposed submissions are distinct and cannot be replicas of other parties.

Reasoning

Each title deed is singular; a registered owner cannot rely on another owner's submissions to advance personal and proprietary rights. The 1st and 2nd applicants outlined their interests, the prejudice they face, and their distinct submissions in the application and supporting affidavit.

p. 4

Legal principles established

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  • Enjoinment as an interested party is not automatic; it requires demonstration of a personal identifiable and proximate interest, demonstrable prejudice from non-joinder, and a distinct case not a replication of other parties' submissions.
  • Each title holder must advance their own proprietary interest; submissions of one registered owner cannot be a replica of another's.

Court orders

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  1. 1.The Proposed 1st and 2nd Interested Parties are hereby enjoined in this proceeding.
  2. 2.The Proposed 3rd Interested Party Application for enjoinment is dismissed.
  3. 3.The 1st and 2nd Interested Parties to file and serve their documents and/or pleadings within Twenty-One (21) Days from the date of this ruling.
  4. 4.Costs be in the course.

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2); Order 51 Rules 1,2,3 & 4
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A & 63(e)
  • Environment & Land Court Act, 2011Sections 7, 13(7), 19 & 26
  • Constitution of Kenya, 2010Articles 20(1), 22(2)(a) & (d), 27(1), 47, 48, 50(1), 159(2)(d) & 162(2)
  • Registered Land Act, Cap 300Section 143

Cases cited (1)

  • Francis Karioki Muruatetu & Another -Versus Republic & 5 Others (Petition 15 & consolidated with 16 of 2013) 2016 eKLR
    Petition 15 & 16 of 2013 (2016) eKLR
Jurisdiction invoked
Articles 20(1), 22(2)(a)&(d), 27(1), 47, 48, 50(1), 159(2)(d) & 162(2) of the Constitution; Environment & Land Court Act, 2011; Order 1 Rule 10(2) 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, "Tomito Tankoi & 9 others v Chief Land Registrar & 3 others; Moses Lemsahon Korinko & 2 others (Interested parties) [2021] KEELC 1689 (KLR)", Case Analysis (2021). Not stated in judgment (Application dated 14th June 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1689/eng@2021-10-07

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