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ELCPartially AllowedNot stated in the judgment (suit by originating summons dated 9th February, 2010)· [2021] KEELC 2581 (KLR)

Lucy Njeri Gichanga & another v John Kamiti Nelson Maregwa & another [2021] KEELC 2581 (KLR)

Environment and Land Court
14 July 2021
2,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Nyeri (Y. M. Angima, ELC Judge) on a notice of motion dated 26th January 2018 by the Plaintiffs, administrators of the estates of two deceased purchasers of suit land. Upon a search in January 2018 they discovered the land had been transferred to Moses Karingithi Maregwa, and they sought leave to amend their 2010 originating summons to join him as 2nd Defendant, temporary injunctions against him and the 1st Defendant, and an inhibition order against the Land Registrar under Section 68 of the Land Registration Act. The Defendant opposed, arguing the orders targeted a non-party, and accused the Plaintiffs of indolence in a nine-to-eleven-year-old suit. The court framed three issues: amendment and joinder, injunctive orders, and inhibition. It allowed the amendment and joinder, holding the intended 2nd Defendant necessary for the effectual and final determination of the suit since the title was now registered in his name. However, it declined to consider the injunction and inhibition prayers on the merits, reasoning that issuing orders against a person not yet joined or served would condemn him unheard. The court directed the Plaintiffs to file and serve the amended originating summons within fourteen days and fixed the application for inter partes hearing on 5th October 2021. Costs on the amendment prayer were reserved to the cause.

Key legal issues

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01

Leave to amend the originating summons and join the intended 2nd Defendant

Holding

Allowed - joinder is necessary for the effectual and final determination of the suit and the transfer to the intended 2nd Defendant was confirmed

Reasoning

The court found the search on the title confirmed transfer of the land to the intended 2nd Defendant, a fact confirmed by the Defendant himself. Applying Order 1 rule 10(2) and the amendment principles (necessity, no undue delay, no injustice), joinder was necessary to effectually and completely adjudicate on all questions in the suit.

p. 4
02

Temporary injunction against the intended 2nd Defendant

Holding

Not considered on the merits; deferred until the intended 2nd Defendant is joined and heard

Reasoning

The injunctive orders were sought against a party not yet before the court and who had no notice of the application. Granting them would violate natural justice by condemning him unheard. The court held he must first be joined, served with the amended originating summons and the application, and given an opportunity to respond.

p. 4
03

Orders of inhibition against the Land Registrar

Holding

Deferred to inter partes hearing after joinder

Reasoning

The court adopted its reasoning on the injunction, holding that the inhibition prayer under Section 68 of the Land Registration Act should be considered inter partes once the intended 2nd Defendant has been enjoined and served with all pleadings including the application.

p. 4

Legal principles established

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  • It is fatal for a plaintiff to proceed with a suit over land without joining the person in whose name the property is now registered
  • Injunctive orders cannot issue against a person who is not yet a party and has not been served, as that would condemn them unheard

Court orders

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  1. 1.The Plaintiffs' prayer for leave to amend the originating summons dated 9th February, 2010 to join Moses Karingithi Maregwa as a 2nd Defendant in this suit is hereby allowed
  2. 2.The Plaintiffs shall file their amended originating summons within fourteen (14) days and serve the Defendants
  3. 3.The application dated 26th January, 2018 shall be served for inter partes hearing for the consideration of the remainder of the prayers on 5th October, 2021
  4. 4.Costs on the prayer for amendment shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 1 rules 3, 6, 10(2) and (4); Order 8 rules 3, 4 and 5; Order 40 rules 1 and 2; Order 51 rule 1
  • Land Registration Act, No. 3 of 2012Section 68
  • Constitution of KenyaArticle 40

Cases cited (12)

  • Joseph S. Wafula v Elena Chepkurgat Talam (sued as the legal administrator of the estate of the late Kiptalam Arap Togo)
    [2019] eKLR
  • Central Kenya Limited v Trust Bank Limited
    (2000) 2 E.A 365
  • Evanson Mbuthia Gitahi v Priscilla Wanjiku Mwathi
    [2019] eKLR
  • Peter Ngonde Gitau v Thomas Mugeni Oseko
    [2017] eKLR
  • Jackline Kemuma Orioki v Jackline Nyaboke Gichana and Another
    [2017] eKLR
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Giella v Cassman Brown Co. Limited
    [1973] E.A 358
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure and Another
    [2015] eKLR
  • Sundiata Nathan Mutende v Willy Mwololo Muindi
    [2012] eKLR
  • Robert Mugo wa Karanja v Ecobank (K) Limited and Another
    [2019] eKLR
  • Wilson Mwirigi Manyara and Another v Moffat Gichuru Manyara
    [2020] eKLR
  • Japheth Kaimenyi Madatho v M'Ndatho M'Mbwiria
    [2012] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 1 rules 3, 6 and 10(2) and (4), Order 8, Order 40 rules 1 and 2 and Order 51 rule 1 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, "Lucy Njeri Gichanga & another v John Kamiti Nelson Maregwa & another [2021] KEELC 2581 (KLR)", Case Analysis (2021). Not stated in the judgment (suit by originating summons dated 9th February, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2581/eng@2021-07-14

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