Mzee Adama Makinja & 2 others v Livingstone Ndungu Waithaka & 5 others [2021] KEELC 3888 (KLR)
The bottom line
#Kenya's Environment and Land Court in Mombasa refused to add a company to a land case and dismissed fraud claims, because no paperwork backed them up.
What this practically means
#Executive summary
#Key legal issues
#Whether the proposed 4th plaintiff is a necessary party under Order 1 Rule 10(2)
Junac Solutions Ltd is not a necessary party; no exhibited document bears its name and its alleged cause of action arises from an agreement between Benson A. Onjole and James Kiage Orwaru to which the defendants are strangers
The deponent described the company as purchaser and business operator, but the annexed sale agreement was in his personal name. No document in the company's name and no board authority were produced. Any claim on the agreement lies only between its parties, none of whom is a defendant. Joinder of a party who has not itself sought to be joined would embarrass and delay the suit, so the court declined to exercise its discretion to add it.
Whether the orders of 6th March 2020 should be set aside for fraud and non-disclosure
The setting-aside application fails: the applicants admit registration of the suit property in the 2nd defendant's name, fraud was not sufficiently proved, and no new and important matter or evidence was produced
The applicants conceded the suit land is registered in the name of the 2nd defendant, making allegations of fraud and material non-disclosure superfluous. Allegations of fraud must be sufficiently proved; none was. No new or important matter or evidence was produced to justify review or setting aside of the orders issued on 6th March 2020 in favour of the defendants.
Legal principles established
#- The court has discretion to add a person whose presence is necessary to enable it effectually and completely adjudicate on all questions in the suit, but a proposed party whose claim arises from a private agreement to which the defendants were not party, and who shows no documents in its own name, is not a necessary party.
- Orders will not be set aside on allegations of fraud unless sufficiently proved and supported by new and important matter or evidence.
Court orders
#- 1.The notice of motion dated 5th June 2020 is dismissed
- 2.Costs of the application to the 2nd defendant
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, Order 1 Rule 10, Order 8 Rule 3 and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mzee Adama Makinja & 2 others v Livingstone Ndungu Waithaka & 5 others [2021] KEELC 3888 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3888/eng@2021-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.