Samuel Nganga Kiambuthi v Eric Munene Gitonga & 4 others [2021] KEELC 1940 (KLR)
The bottom line
#A Kenyan court refused to undo injunction orders over subdivided Ruiru land, ruling that new title numbers alone don't justify review, and misjoinder can't kill a suit.
What this practically means
#Executive summary
#Key legal issues
#Whether the subdivision of the suit property and issuance of new title numbers constituted new and important matter warranting review of the injunction orders of 1st October 2020
No. Although there was genuine discovery of new evidence, the change of title numbers did not alter the circumstances: the Plaintiff remained the registered owner and would still have established a prima facie case
The court accepted that the defendants could not by due diligence have known of the subdivision when the order was made, since the title was closed after the application was filed. However, review is discretionary and not automatic. All facts remained constant save for the new numbers; the same land was the subject of the suit and the Plaintiff's ownership was unchanged, so the threshold for review was not met.
Whether the suit should be struck out for alleged misjoinder of defendants and because the substratum of the suit had ceased to exist
No. Misjoinder cannot defeat a suit under Order 1 Rule 9, and any anomaly is curable by the pending amendment of the Plaint
The court held that the alleged misjoinder arising from the subdivision into distinct parcels could not justify striking out, given Order 1 Rule 9. Further, the Plaintiff had already applied to amend the Plaint to include the new title numbers, so it would be premature and draconian to strike out the suit before that application was determined.
Legal principles established
#- Review lies on discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, applied for without unreasonable delay, but discovery of new evidence does not automatically oblige the court to review its order
- Misjoinder or non-joinder of parties cannot defeat a suit
- Striking out a pleading is a draconian step reserved for pleadings that are an abuse of process or scandalous, frivolous or vexatious
Court orders
#- 1.The Notice of Motion Application dated 6th October 2020 is dismissed entirely
- 2.Costs of the application to the Plaintiff/Respondent
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Nganga Kiambuthi v Eric Munene Gitonga & 4 others [2021] KEELC 1940 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 6th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1940/eng@2021-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.