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ELCAllowedNot stated in judgment· [2021] KEELC 2426 (KLR)

George Kigen Cheboiywo & 5 others v Kipngok Chirchir & 2 others [2021] KEELC 2426 (KLR)

Environment and Land Court
28 July 2021
JMJ M Mutungi
1,198 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan land court allowed 26 new parties to join a land dispute because anyone affected by the outcome must be heard.

What this practically means

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Executive summary

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The applicant, through a Notice of Motion dated 11th March 2021, sought leave to amend the plaint to enjoin sixteen additional plaintiffs and ten additional defendants to a land dispute over Nakuru L.R Nos. 482/5, 482/6 and 6547 (Curtis Estate), land purchased in 1996 through Koyamtich Farm Limited, a land buying company. The supporting affidavit of Solomon Chirchir Tuwei deposed that the plaintiffs and intended plaintiffs own and occupy various portions of the suit property, and that despite court orders for maintenance of status quo and for parties to remain in their respective portions, intended defendants who are not parties to the suit have continued to interfere with the property, making the orders impossible to enforce. The defendants, through a replying affidavit of the 3rd defendant Kiptalam Chirchir Sembele, opposed the application, contending that the issues could be effectually determined between the existing parties and that enjoining more parties would cloud the issues, embarrass and delay trial. The court, guided by Order 1 Rule 10(2) of the Civil Procedure Rules and the authorities of Pravin Bowry v John Ward, Deported Asians Property Custodian Board v Jaffer Brothers and Communications Commission of Kenya v Royal Media Services, held that the determinant factor in joinder is whether a common question of fact or law arises between the existing and intended parties. Noting that the affected persons stood to be affected by any final orders and that joinder would prevent multiplicity of suits, the court allowed the application, enjoined the intended parties, gave 14 days for amendment, 30 days for service, fixed pretrial directions for 12th October 2021, and ordered costs in the cause.

Key legal issues

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Whether joinder of additional parties is warranted where orders of the court affect persons not before it

Holding

Joinder allowed; the intended parties are affected by the status quo orders and by any final orders the court may make, and their interests would only become evident if they were parties.

Reasoning

The court noted continued interference with the suit property by persons not party to the suit, making the status quo orders difficult to enforce. Such persons stand to be affected by any final orders. Their interest in the suit property would only become evident if they are parties, as they could then state their interest through pleadings and evidence. Enjoining them prevents duplication of efforts and allows the court to determine all common issues of fact and law.

p. 2

Legal principles established

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  • The determinant factor in joinder of parties is whether a common question of fact or law arises between the existing and intended parties
  • Joinder may be allowed where a party's presence is necessary to enable the court effectually and completely adjudicate upon all questions in issue, where the orders sought would affect that person's interests, and to avoid multiplicity of suits

Court orders

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  1. 1.Leave granted to amend the plaint to enjoin the intended 7th to 22nd plaintiffs as plaintiffs
  2. 2.The intended 4th to 13th defendants to be enjoined to the suit as defendants
  3. 3.Plaintiffs granted liberty to file and amend plaint/enjoining the new parties within 14 days from the date of the ruling
  4. 4.The enjoined defendants to be served with summons to appear within 30 days from the date of the ruling
  5. 5.Matter to be fixed for pretrial directions on 12th October 2021
  6. 6.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (3)

  • Pravin Bowry vs John Ward & Another
    [2015] eKLR
  • Deported Asians Property Custodian Board vs Jaffer Brothers Ltd
    [1999] 1 E.A 55 (SCU)
  • Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others
    [2014] eKLR
Jurisdiction invoked
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Kigen Cheboiywo & 5 others v Kipngok Chirchir & 2 others [2021] KEELC 2426 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2426/eng@2021-07-28

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