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ELCPartially AllowedNot stated in the judgment (application dated 24/3/2021)· [2021] KEELC 2700 (KLR)

Stephen Mburu Ndungu & 50 others v Nelson Ndungu & 74 others [2021] KEELC 2700 (KLR)

Environment and Land Court
30 June 2021
JKJ. G. Kemei
1,450 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 51 Plaintiffs moved the Environment and Land Court at Murang'a by a notice of motion dated 24 March 2021, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 1, 8 and 5 of the Civil Procedure Rules, seeking leave to amend the plaint to enjoin Punda Milia Co-operative Society Limited as a Defendant and leave to advertise the suit in a national newspaper so that any interested party or purchaser of the subject property could apply to join. The application was supported by the affidavit of Stephen Ndungu Mburu. Counsel for the 1st–4th Defendants partially opposed it and the rest wholly opposed it, arguing that the Society's officials were already parties and that the advertisement would invite imaginary claimants and delay the matter; no replying affidavits were filed. The court framed three issues: joinder of the Society, advertisement, and costs. Relying on Order 1 Rules 3 and 10(2) CPR and applying Andy Forwarders Service Limited v Price Waterhouse Coopers Limited, the court allowed joinder of the Society, being the registered proprietor of the land, finding no prejudice. However, it refused the advertisement: the suit protects private rights rather than public rights, 66 new parties had already been enjoined by order of 25 May 2021, and unidentified parties may later apply for joinder on proof of necessity. The application therefore partially succeeded, with no orders as to costs. Delivered by J. G. Kemei, Judge, on 30 June 2021.

Key legal issues

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01

Joinder of Punda Milia Co-operative Society as Defendant

Holding

Joinder allowed; the Society is the registered proprietor of the subject land and its presence is necessary for effective adjudication

Reasoning

Under Order 1 Rule 10(2) and Order 1 Rule 3 CPR, the court evaluates the relevance of a proposed party to the just determination of the suit. The Society is alleged to be the registered proprietor of the subject land, and following Andy Forwarders, presence necessary for complete adjudication suffices even absent a direct cause of action. No prejudice was shown.

p. 2
02

Whether the suit should be advertised in a national newspaper

Holding

Refused; advertisement would invite all and sundry into a suit protecting private rights and risk convoluting the matter

Reasoning

The overriding objective favours just, expeditious, proportionate and affordable resolution. The suit protects private rights of the plaintiffs against the defendants; the proposed advert targets unidentified parties whose necessity is indeterminable, and 66 new parties are already enjoined. Plaintiffs retain liberty to seek joinder of identified necessary parties later.

p. 2

Legal principles established

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  • A person may be joined in a suit not because there is a cause of action against him but because his presence is necessary to enable the Court effectually and completely adjudicate upon and settle all questions involved in the matter
  • Leave to amend a plaint should be freely allowed where no injustice is visited on the other party

Court orders

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  1. 1.Leave granted to amend the plaint to include Punda Milia Co-operative Society Limited as a Defendant
  2. 2.Prayer for leave to advertise the suit in a national circulating newspaper declined
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 1 Rule 3
  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 5 Rule 17

Cases cited (2)

  • St. Patrick's Hill School Limited v Bank of Africa Kenya Limited
    [2018]
  • Andy Forwarders Service Limited & Another v Price Waterhouse Coopers Limited & Another
    [2012] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 1 Rule 10, Order 8 Rule 3 and Order 5 Rule 17 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, "Stephen Mburu Ndungu & 50 others v Nelson Ndungu & 74 others [2021] KEELC 2700 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 24/3/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2700/eng@2021-06-30

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