Consolidated Bank of Kenya Ltd v Monica Wangari Ndungu & 5 others [2021] KEELC 3498 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Preliminary objection on advocates on record
Dismissed as unfounded; the appellant failed to prosecute the preliminary objection in its main submissions
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.
Joinder vis-a-vis limitation of actions
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
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.
Temporary injunction
The appellant established a prima facie case with probability of success, irreparable harm, and balance of convenience favouring it
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.
Inhibition
An order of inhibition was necessary to preserve the suit land pending determination
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.
Legal principles established
#- 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
#- 1.The ruling of 10.9.2019 is set aside and substituted with an order allowing the application dated 1.5.2019
- 2.Each party is to bear their own costs in this appeal
- 3.The lower court file is to be severed from this file and remitted back to the trial court for determination
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.