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ELCDismissedNot stated in judgment (Notice of Motion dated 6th October 2020)· [2021] KEELC 1940 (KLR)

Samuel Nganga Kiambuthi v Eric Munene Gitonga & 4 others [2021] KEELC 1940 (KLR)

Environment and Land Court
24 September 2021
2,472 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Defendants/Applicants moved the Court by Notice of Motion dated 6th October 2020 seeking review and setting aside of the injunctive orders issued on 1st October 2020 in favour of the Plaintiff, and striking out of the Plaint. They argued that while the matter awaited ruling, the Plaintiff subdivided the suit property L.R Ruiru/Ruiru East Block 2/2049 into sixteen parcels (L.R 2/35038 to 35053) and closed the title, without disclosing this to the Court or the Defendants, thereby destroying the subject matter and rendering the suit incurably defective for misjoinder, since each Defendant allegedly occupied a distinct parcel. The Plaintiff opposed, explaining that subdivision had begun before filing suit so he could sue each Defendant on the portion they occupied, that only the title numbers had changed while the Defendants remained in occupation, and that he had filed an application to amend the Plaint to reflect the new numbers. The Court, applying Section 80 of the Civil Procedure Act and Order 45 Rule 1, accepted that the discovery of the subdivision constituted new and important matter not known to the Defendants despite due diligence. However, it held that review is not automatic and that the change of title numbers did not alter the circumstances of the case, as the Plaintiff remained the registered owner and would still have established a prima facie case. On striking out, the Court applied Order 1 Rule 9, holding that misjoinder cannot defeat a suit, and found it premature to strike out the Plaint given the pending amendment application. The application was dismissed entirely with costs to the Plaintiff/Respondent.

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 3
02

Whether the suit should be struck out for alleged misjoinder of defendants and because the substratum of the suit had ceased to exist

Holding

No. Misjoinder cannot defeat a suit under Order 1 Rule 9, and any anomaly is curable by the pending amendment of the Plaint

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Motion Application dated 6th October 2020 is dismissed entirely
  2. 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

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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, "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.