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ELCAllowedNot stated in the judgment as provided· [2021] KEELC 1840 (KLR)

Wanyoike Mungai v Beatrice Karanja & another [2021] KEELC 1840 (KLR)

Environment and Land Court
30 September 2021
2,967 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 set aside a land judgment because the registered owner was never joined or heard in the case.

What this practically means

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Executive summary

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This was a Notice of Motion dated 7th December 2020 by Broadway Bakery Limited, the proposed 2nd Defendant, seeking leave to be enjoined in a suit over Title No. Thika Municipality/Block 13/273 (formerly L.R 4953/1420), and seeking review and setting aside of the judgment and decree of 1st November 2019 declaring the plaintiff the lawful owner of the suit property. The Applicant averred that it purchased the property from the widow of the late Vice President Josephat Njuguna Karanja for Kshs. 55,000,000/= under a court order permitting the sale, became registered owner on 7th August 2015, and took possession, yet was never joined or served in the suit. The Application was unopposed; the Defendant filed submissions supporting it, while the Plaintiff did not respond. The court framed two issues: joinder of the proposed 2nd Defendant, and review of the judgment. Applying Order 1 Rule 10(2), the court found the Applicant a necessary party since it was the registered owner when the suit was filed on 14th June 2018. On review under Section 80 of the Civil Procedure Act and Order 45 Rule 1, and applying its own decision in Alton Homes Limited, the court held the Applicant's rights over the property could not be arbitrarily taken away without a hearing. The court allowed the application entirely, enjoined Broadway Bakery Limited as 2nd Defendant, and reviewed and set aside the judgment of 1st November 2019 and all consequential orders, with costs to the Applicant.

Key legal issues

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01

Joinder of a necessary party

Holding

The Proposed 2nd Defendant, being the registered owner of the suit property when the suit was filed, heard and determined, ought to have been enjoined and is now joined as 2nd Defendant.

Reasoning

Order 1 Rule 10(2) empowers the court to add any person whose presence is necessary to effectually and completely adjudicate all questions in the suit. The certificate of title produced showed transfer to Broadway Bakery Limited on 7th August 2015, before the suit was filed on 14th June 2018. Its interest was adversely affected by the judgment and decree issued in its absence, making joinder necessary.

p. 3
02

Review and setting aside of judgment on grounds of natural justice and mistake

Holding

The judgment and decree of 1st November 2019 were reviewed and set aside because they were obtained without joining the registered owner, violating the right to be heard and to protection of property.

Reasoning

Review is available under Section 80 of the Civil Procedure Act and Order 45 Rule 1 for mistake, error apparent on the face of the record or sufficient reason. The Applicant's title dated 7th August 2015 was not controverted, and its occupation was unrebutted. Following the court's own precedent in Alton Homes Ltd, property cannot be arbitrarily taken away without a hearing; the right to be heard can only be achieved by reviewing and setting aside the judgment.

p. 4

Legal principles established

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  • A person whose registered interest in suit property will be affected by orders of the court is a necessary party and cannot be condemned unheard.
  • Where a party was not served or had no notice of proceedings resulting in judgment against its interest, the judgment ought to be set aside as of right (ex debito justitiae).

Court orders

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  1. 1.Leave granted to Broadway Bakery Limited to be enjoined in the suit as the 2nd Defendant
  2. 2.The Judgment delivered on 1st November 2019 and the Decree issued therein, together with all consequential orders, reviewed and set aside
  3. 3.The application dated 7th December 2020 allowed entirely with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 48 and 50
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 1 Rules 6, 7 and 10(2); Order 45 Rule 1
  • Registration of Titles Act (repealed)Conversion of title referenced
  • Registered Land Act (repealed)Conversion of title referenced

Cases cited (4)

  • Linear Coach Co Ltd …Vs…. Samson K.M Bichanga & Another
    (2006) eKLR
  • Pithon Maina vs Thuku Mugiria
    (1982 – 88) 1 KAR 171
  • Remco Ltd – vs Mistry Jakra Parbat & Company Ltd and others
    [2002] 1 EA 233
  • Alton Homes Limited & another …Vs… Davis Nathan Chelogoi & 2 others; Joshua Omondi Hallonda & 2 others (Interested Parties)
    [2019] eKLR
Jurisdiction invoked
Inherent jurisdiction and review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules; joinder under 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, "Wanyoike Mungai v Beatrice Karanja & another [2021] KEELC 1840 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1840/eng@2021-09-30

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