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ELCPartially AllowedNot stated in judgment (filed 26/9/2019 by memorandum of appeal)· [2021] KEELC 3498 (KLR)

Consolidated Bank of Kenya Ltd v Monica Wangari Ndungu & 5 others [2021] KEELC 3498 (KLR)

Environment and Land Court
5 May 2021
4,429 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 landowner to join a bank to a land dispute and halted an auction, holding limitation defences cannot be raised by parties not yet joined.

What this practically means

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Executive summary

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This is an appeal to the Environment and Land Court at Meru against the ruling of the Chief Magistrate's Court of 10 September 2019 dismissing an application dated 1 May 2019. The appellant, who had sued the 1st-4th respondents over land parcel No. Ntima/Igoki/7408 (security for a Kshs.13.6 million loan), sought leave to enjoin the 5th and 6th respondents by amended plaint, a temporary injunction restraining sale of the land, and an order of inhibition. It also filed a preliminary objection seeking to strike out the 6th respondent's replying affidavit and notice of change of advocates. The trial court dismissed the application with costs, holding the claim against the intended parties statute-barred. On appeal, the ELC held that the trial court erred by delving into the merits of the proposed amendments and the limitation defence before the amendment and joinder were determined, since the 5th and 6th respondents were not yet parties and could not plead limitation. Adopting the doctrine of 'relating back' from Yusuf Abdallah Gitau, the court held that the appellant, having filed suit on 28.7.2014 within time, could relate the joinder back to the filing date. The court further found the preliminary objection claim unfounded for want of proper prosecution. On injunction, applying Giella v Cassman Brown, the appellant established a prima facie case, irreparable harm and balance of convenience, since the land was being realized by auction. An inhibition was warranted under Section 68 of the Land Registration Act. The appeal was allowed: the ruling of 10.9.2019 was set aside and substituted with an order allowing the application dated 1.5.2019; each party to bear its own costs; and the lower court file remitted to the trial court.

Key legal issues

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01

Preliminary objection on advocates on record

Holding

Dismissed as unfounded; the appellant failed to prosecute the preliminary objection in its main submissions

Reasoning

The court could not fathom the exact directions on the preliminary objection since the appellant did not avail the lower court proceedings. It inferred that the PO was to be determined alongside the application. Nothing about the PO appeared in the appellant's main submissions of 8.8.2019, only in further submissions with an unconvincing account. The appellant therefore failed to properly prosecute the objection.

p. 3
02

Joinder vis-a-vis limitation of actions

Holding

The trial court erred in delving into limitation and the merits of the proposed amendments before joinder/amendment was allowed; the doctrine of relating back protects the appellant

Reasoning

Limitation must be specifically pleaded under Order 2 Rule 4, but the 5th and 6th respondents were not yet parties and had no pleadings on record since the amended plaint had not been admitted. The proposed parties arose from the same facts as the initial pleading and fit Order 1 rule 10(2). Following Yusuf Abdallah Gitau, joinder relates back to the filing date (28.7.2014), which interrupted limitation.

p. 4
03

Temporary injunction

Holding

The appellant established a prima facie case with probability of success, irreparable harm, and balance of convenience favouring it

Reasoning

Applying Giella v Cassman Brown principles, the green card showed the appellant's charge registered 5.9.2012 was discharged within 8 months despite a 10-year loan repayment term, with no rebuttal of alleged fraud, and the 6th respondent admitted it was realizing its security by auction. The land would be alienated beyond the appellant's reach, so damages would not suffice.

p. 5
04

Inhibition

Holding

An order of inhibition was necessary to preserve the suit land pending determination

Reasoning

Section 68 of the Land Registration Act empowers the court to inhibit registration of dealings with land. The suit land was in the process of being auctioned when the application was filed; inhibition was needed so the final orders of the court would not be rendered academic.

p. 6

Legal principles established

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  • A trial court should not delve into the substance/merits of proposed amendments (including limitation defences) before the amendment admitting the new parties is determined
  • The doctrine of 'relating back' operates so that joinder of a necessary party relates back to the date of filing the suit, protecting the claimant where the suit itself was filed within time
  • For joinder, the applicant must show the proposed party is necessary or proper, with an interest in the litigation and relief flowing from that party

Court orders

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  1. 1.The ruling of 10.9.2019 is set aside and substituted with an order allowing the application dated 1.5.2019
  2. 2.Each party is to bear their own costs in this appeal
  3. 3.The lower court file is to be severed from this file and remitted back to the trial court for determination

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22, Laws of Kenya)Section 4(1)(a)
  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 2 Rule 4
  • Civil Procedure RulesOrder 1 Rule 3
  • Civil Procedure RulesOrder 1 Rule 9
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure Rules 2010Order 40(1)(a) and (b)
  • Land Registration ActSection 68

Cases cited (15)

  • Yusuf Abdallah Gitau vs The Building Centre (K) Ltd
    (2007) eKLR
  • Kalenjin Auto Hardware Ltd vs John Songok & another
    (2019) eKLR
  • Central Kenya Limited vs Trust Bank Limited & 5 others
    (2000) eKLR
  • AAT Holdings Limited vs Diamond Shield International Limited
    (2014) eKLR
  • Patrick Nyakundi vs Kenya National Union of Teachers (KNUT headquarters) & another
    (2017) eKLR
  • Achola & another vs Hongo & another
    LLR 4007 (CAK)
  • Kimani Kabogo vs William Kabogo Gitau
    (2018) eKLR
  • Edward Moonge Lengusu Suranga vs James Lanaiyara & Another
    (2019) eKLR
  • Elijah Ntaiya vs Lekinini Kulale and 3 others
    (2008) eKLR
  • Joseph Njau Kingori vs Robert Maina Chege & 3 others
    [2002] eKLR
  • Liff vs Peasley and Another
    (1980) I.A.E.R 63
  • National Bank of Kenya Limited v Juja Coffee Exporters Limited
    [2021] eKLR
  • Giella vs Cassman Brown Co Ltd
    [1973] E.A. 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
On appeal from
Meru Chief Magistrate's Court (originally Meru ELC Case No. 113/2014)
CMCC No. 30 of 2018
Jurisdiction invoked
Appellate jurisdiction over an appeal from the trial court's ruling (memorandum of appeal dated 26/9/2019); specific statutory provision not cited

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, "Consolidated Bank of Kenya Ltd v Monica Wangari Ndungu & 5 others [2021] KEELC 3498 (KLR)", Case Analysis (2021). Not stated in judgment (filed 26/9/2019 by memorandum of appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3498/eng@2021-05-05

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