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ELCPartially AllowedNairobi ELC Miscellaneous Application No 4 of 2016 (OS) (Lead File), consolidating Misc 5/2016, Misc 10/2016 (OS), Misc 13/2016 (OS), 85/2018 (OS) and ELC 333/2019 (OS)· [2021] KEELC 2979 (KLR)
Emily Mwenda Waita v Venture Holdings Limited; Grace Wanjiru Koni (Third Party) [2021] KEELC 2979 (KLR)
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·~8 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court removed a third party from consolidated land disputes because the same claims were already before another judge.
What this practically means
#Executive summary
#Six consolidated originating summonses, taken out under Order 37 rule 3 of the Civil Procedure Rules by purchasers of apartments built on a half-acre portion of LR 330/356, Gitanga Road, Nairobi, sought determinations against the defendant developer, Venture Holdings Limited, on questions including breach of the letter of offer, damages, and surrender of the apartments. The developer had bought the half-acre from Grace Wanjiru Koni under an agreement dated 2/7/2009 and, alleging her failure to sub-divide and transfer, sued her for specific performance in Nairobi ELC Case No 88 of 2019 (originally High Court Commercial Case No 361 of 2011). With the plaintiffs' consent, the developer joined Koni as a third party in the consolidated causes, contending her breach caused its inability to transfer titles to the purchasers. Koni applied by chamber summons dated 4/3/2020 to be removed, arguing she was not privy to the purchaser contracts and that the dispute was already pending in ELC 88 of 2019. Justice Eboso agreed: the joinder was procured by consent, not court determination; the damages question was already under adjudication in ELC 88 of 2019 in breach of Section 6 of the Civil Procedure Act; and Order 37 rule 3 prohibits determination of a contract's validity on an originating summons, such disputes requiring a plaint. The court allowed the application, removed the third party, made no order as to costs due to her delay and prior participation, and directed that the six causes be disposed of by the court handling ELC 88 of 2019, with mention before Komingoi J on 9/6/2021.
Key legal issues
#01
Whether the third party was improperly joined in the consolidated causes
Holding
The third party was improperly joined; she was removed from the proceedings
Reasoning
The joinder was effected by consent between the defendant and plaintiffs, not by a considered court determination. Further, the liability of the third party to pay damages for breach of the 2/7/2009 contract was already under adjudication in Nairobi ELC Case No 88 of 2019, filed in 2011, so entertaining it via a third party notice breached Section 6 of the Civil Procedure Act. Additionally, third party notices on an Order 37 rule 3 originating summons effectively sought determination of the contract's validity, which the rule prohibits on that platform.
p. 2
Legal principles established
#- A party aware that an issue is already under adjudication in a pending suit cannot re-litigate the same issue via a third party notice, contrary to Section 6 of the Civil Procedure Act
- Originating summonses under Order 37 rule 3 cannot be used to determine questions affecting the existence or validity of a contract; such disputes require a plaint
- A third party joined by consent rather than by a considered court determination may seek her removal from the proceedings
Court orders
#- 1.The chamber summons dated 4/3/2020 is allowed and Grace Wanjiru Koni is removed from the six consolidated originating summonses
- 2.No order as to costs
- 3.The six consolidated causes shall be disposed of by the court seized of Nairobi ELC Case No 88 of 2019 and be mentioned before Komingoi J on 9/6/2021 for directions
- Jurisdiction invoked
- Order 37 rule 3 of the Civil Procedure Rules (originating summonses on land sale contracts); third party procedure under the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emily Mwenda Waita v Venture Holdings Limited; Grace Wanjiru Koni (Third Party) [2021] KEELC 2979 (KLR)", Case Analysis (2021). Nairobi ELC Miscellaneous Application No 4 of 2016 (OS) (Lead File), consolidating Misc 5/2016, Misc 10/2016 (OS), Misc 13/2016 (OS), 85/2018 (OS) and ELC 333/2019 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2979/eng@2021-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.