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ELCAllowedNotice of Motion dated 7th July, 2020 (ELC suit, Machakos)· [2021] KEELC 2065 (KLR)

Mulinge Kilungu Kikwau v William Matilu Kikuvi; Peter Kyanya Mwangangi(Interested Party/Applicant) [2021] KEELC 2065 (KLR)

Environment and Land Court
30 July 2021
OAO. A. Angote
2,513 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 set aside a land boundary judgment because the affected landowner was never heard, and joined him as a necessary party.

What this practically means

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Executive summary

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The Applicant, registered proprietor of land parcel Kalama/Iiuni/165, moved the Environment and Land Court at Machakos by Notice of Motion dated 7th July 2020 seeking review and setting aside of a judgment delivered on 12th October 2018 in a boundary dispute between the Plaintiff (proprietor of Kalama/Iiuni/919) and the Defendant (co-owner of parcel 165), together with leave to be enjoined in the suit. The Applicant deponed that he overheard the Plaintiff intending to demolish property built on parcel 165 pursuant to the judgment, which was founded on a surveyor's report of 18th May 2011 finding that the proprietor of parcel 165 had erected a building on plot 919. He argued he was never sued or heard despite the judgment directly affecting his land. The Plaintiff opposed the application as frivolous and an abuse of process, asserting the judgment only bound the Defendant, who admitted trespass. The Defendant supported the application, claiming co-ownership of parcel 165 and raising doubts about the survey reports. Applying Section 80 of the Civil Procedure Act, Order 45 Rule 1 and Order 12 Rule 7, and the discretionary principles in Patel v EA Cargo Handling and Shah v Mbogo, the court held that the Applicant was a necessary party under Order 1 Rule 10(2), applying Shirvling Supermarket and the Deported Asians case. Holding that the Applicant had a right to be heard before the court's decision, the court allowed the application: the judgment and consequential orders were set aside, the Applicant was enjoined as 2nd Defendant, granted fourteen days to file and serve a defence, and the Plaintiff was ordered to pay the costs of the application.

Key legal issues

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01

Whether the Applicant qualified as a necessary party

Holding

The Applicant, being the registered proprietor of Kalama/Iiuni/165 which was subject of the boundary dispute, was a necessary party all along

Reasoning

The Applicant produced a Title Deed showing registration as proprietor of Kalama/Iiuni/165 on 20th December 2010. The survey report relied on by the Plaintiff specifically implicated the proprietor of parcel 165 as having erected a building on plot 919. Under Order 1 Rule 10(2) and the test in Shirvling Supermarket and Deported Asians Property Custodian Board, his presence was necessary for effectual and complete adjudication and to avoid multiplicity of suits.

p. 3
02

Whether the judgment should be set aside and review granted

Holding

The judgment of 12th October 2018 and all consequential orders were set aside because the Applicant was condemned unheard

Reasoning

The court applied Section 80 CPA, Order 45 Rule 1 and Order 12 Rule 7, and the discretion in Patel v EA Cargo Handling and Shah v Mbogo, which is to be exercised to avoid injustice. Since the Applicant was not sued or heard despite being directly affected by the survey report underlying the judgment, justice required setting aside the judgment and enjoining him as 2nd Defendant.

p. 4

Legal principles established

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  • The court's power to set aside its judgments is discretionary and its main concern is to do justice to the parties
  • A necessary party is one whose presence enables the court to effectually and completely adjudicate upon all questions in the suit
  • A person whose interests would be affected by orders sought has a right to be heard before decision

Court orders

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  1. 1.The Judgment delivered on 12th October, 2018 and all consequential orders are hereby set aside
  2. 2.The Applicant is granted leave to be enjoined in this suit as the 2nd Defendant
  3. 3.The Applicant is granted leave of fourteen (14) days to file and serve his Defence upon the Plaintiff and the Defendant
  4. 4.The Plaintiff to pay the costs of the Application
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010 (review); Order 12 Rule 7 and Order 1 Rule 10(2) 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, "Mulinge Kilungu Kikwau v William Matilu Kikuvi; Peter Kyanya Mwangangi(Interested Party/Applicant) [2021] KEELC 2065 (KLR)", Case Analysis (2021). Notice of Motion dated 7th July, 2020 (ELC suit, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2065/eng@2021-07-30

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