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ELCPartially Allowed· [2021] KEELC 2559 (KLR)

Eliezer Njuguna Mungai v John Muya Mungai & 3 others [2021] KEELC 2559 (KLR)

Environment and Land Court
15 July 2021
LGL. GACHERU
2,492 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 allowed a new defendant to join a land case and a defaulted defendant back into the case, prioritising a fair hearing over strict procedure.

What this practically means

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Executive summary

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Two applications came before the Environment and Land Court at Thika in a claim filed on 11th April 2018 by Eliezer Njuguna Mungai against the 1st, 2nd and 3rd Defendants, seeking among other things permanent orders compelling the 1st Defendant to surrender the title of land parcel LR. No. Dagoretti/Thogoto/T.18 to the 2nd Defendant. By the time of the applications the Plaintiff's evidence had been heard and the matter was awaiting judgment. The first application, by Chamber Summons dated 28th August 2020, sought joinder of David Kamau Mungai as 4th Defendant on the basis of a beneficial interest in half a share of the parcel bequeathed by his late father, Amos Mungai Kariuki. The Plaintiff opposed, arguing the matter was heard and awaiting judgment and that the application was a belated attempt to stall it. Applying Order 1 Rule 10(2), the Court held the Applicant a necessary party whose interests would be affected by any order for the Plaintiff without a hearing, contrary to natural justice, and enjoined him with leave to amend the Plaint. The second application, by Notice of Motion dated 24th September 2020, by the 1st Defendant sought to set aside the ex parte formal proof proceedings of 20th March 2019, leave to file his defence out of time, and referral to the Land Registrar under Section 94(2) of the Land Registration Act. Although service was valid and there was delay, the Court, invoking Section 3A and the Patel principle, allowed setting aside and leave to defend in view of the COVID-19 context and the triable issues raised by the draft Defence. The referral prayer was declined as premature. Costs were in the cause on the first application and throw away costs of Kshs.15,000 to the Plaintiff on the second.

Key legal issues

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01

Joinder of a necessary party under Order 1 Rule 10(2)

Holding

David Kamau Mungai was a necessary party because any order in the Plaintiff's favour would affect his alleged beneficial interest in the suit property without hearing him; he was enjoined as 4th Defendant.

Reasoning

Order 1 Rule 10(2) empowers the court to add a person whose presence is necessary to enable it effectually and completely adjudicate all questions in the suit. The dispute concerned ownership and intended subdivision of LR. No. Dagoretti/Thogoto/T.18, and the Applicant claimed a beneficial interest in half a share bequeathed by his late father. If the Plaintiff succeeded, the Applicant would be affected without having been heard, contrary to natural justice. No prejudice would be occasioned to the Plaintiff, so joinder was allowed and the Plaint had to be amended.

p. 2
02

Setting aside ex parte proceedings and leave to file defence out of time

Holding

Although there was valid personal service and unexplained delay of over a year in bringing the application, the COVID-19 pandemic context and the existence of a triable issue justified setting aside the proceedings of 20th March 2019 and allowing the 1st Defendant to file his defence out of time.

Reasoning

The Court found service valid on the Affidavits of Service sworn by John Macharia Muraguri and Timothy Kalamu Simiyu, and noted the delay in filing the application and non-compliance with Order 11. However, the pandemic had halted face-to-face court services when counsel sought file perusal, so in the interest of justice under Section 3A the 1st Defendant should be allowed to defend his case. The draft Defence alleged the property was never the Plaintiff's to sell without consent and that a portion had been sold to one Martin Waweru Wangui, raising triable issues.

p. 3
03

Referral to the Land Registrar under Section 94(2) of the Land Registration Act

Holding

Refused at that juncture; the nature of the dispute (boundary or subdivision) must first be established by evidence.

Reasoning

The Court could not determine the referral prayer without evidence establishing whether the controversy was a boundary dispute or a subdivision issue. Parties would have to call evidence before the question could be resolved.

p. 4

Legal principles established

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  • Amendments and joinder should be freely allowed at any stage of proceedings so long as they do not result in prejudice or injustice that cannot be compensated in costs.
  • The court's discretion to set aside ex parte proceedings is wide, the main concern being to do justice to the parties.
  • A person whose interests would be affected by the court's orders must be heard before those orders are made - a necessary party must be joined.

Court orders

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  1. 1.David Kamau Mungai is enjoined in the suit as 4th Defendant (Chamber Summons dated 28th August 2020 allowed in terms of prayer No. 1 only, with costs in the cause)
  2. 2.The Plaint to be amended to reflect the joinder of the 4th Defendant
  3. 3.The proceedings taken on 20th March 2019 are set aside (Notice of Motion dated 24th September 2020 allowed in terms of prayer No. 1 only)
  4. 4.Leave granted to the 1st Defendant to file his defence and accompanying pleadings out of time (prayer No. 2)
  5. 5.Throw away costs of Kshs.15,000 to the Plaintiff/Respondent on the second application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(c)/63(e)
  • Civil Procedure RulesOrder 1 Rules 3, 10(2), 14, 15 & 25; Order 7; Order 8 Rule 3(5); Order 11; Order 12 Rule 7; Order 21 Rule 1; Order 51 Rule 1
  • Constitution of KenyaArticles 40, 50, 159
  • Land Registration ActSection 94(2)

Cases cited (2)

  • Central Kenya Ltd….Vs…Trust Bank & 4 Others
    CA 222 of 1998
  • Patel….Vs….E.A Cargo Handling Services Ltd
    (1974) EA 75
Jurisdiction invoked
Sections 1A, 1B, 3A & 63 of the Civil Procedure Act; Articles 40, 50 and 159 of the Constitution; Order 1 Rules 3, 10(2), 14, 15 & 25, Order 7, Order 8 Rule 3(5), Order 12 Rule 7 and Order 51 Rule 1 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, "Eliezer Njuguna Mungai v John Muya Mungai & 3 others [2021] KEELC 2559 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2559/eng@2021-07-15

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