Eunice Wangui Mbogo & another v Margaret Mbucu Mathuri (Sued as Administrator of Adriano Mathuri Ngondi) & 2 others [2022] KEELC 188 (KLR)
The bottom line
#Kenya's Embu Land Court allowed an adverse possession claim to continue against new owners of subdivided land, holding that different claimants defeat a res judicata objection.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit is res judicata Embu ELC No. 5 of 2017
- 2.Whether the applicants should be allowed to enjoin/join the intended respondents to the suit
- 3.Whether leave should be granted to amend the originating summons
- 4.Whether leave should be granted for substituted service on the intended respondents
Key legal issues
#Res judicata
The suit is not res judicata Embu ELC No. 5 of 2017 because the parties are not the same
The applicants are children of the plaintiff in ELC No. 5 of 2017, litigating in their own capacity and not under their mother. The mother's suit was dismissed on her failure to prove her own possession. Different parties and a different cause of action mean the doctrine's elements are not met.
Joinder of parties
Joinder of the intended respondents is merited as they are registered owners of subdivisions of the suit land and necessary for complete adjudication
Order 1 Rule 10(2) permits joinder of any person whose presence is necessary to effectually and completely adjudicate on all questions. The intended respondents hold registered titles to subdivisions of the suit parcel and would be affected by any adverse orders; joining them also accords them a hearing and prevents multiplicity of suits.
'Enjoin' vs 'join'
The use of 'enjoin' is treated as a request for joinder, invoking Article 159
Following Re Estate of Barasa Kanenje Manya, 'enjoin' means to injunct or bar, while the applicants clearly sought to add the intended respondents as parties. The court presumed joinder was intended and determined the application on its merits.
Amendment of pleadings
Leave to amend the originating summons is granted as no prejudice was demonstrated
Amendments should be freely allowed at any stage unless they cause prejudice not compensable in costs. The respondents did not demonstrate any prejudice; the amendment reflects the real parties and the current parcels in dispute.
Substituted service
Substituted service is allowed as the applicants do not know the intended respondents' residences or postal addresses
Order 5 Rule 17 permits substituted service where personal service cannot be effected. Although the process server's affidavit did not show difficulty, the applicants averred they do not know the intended respondents or their addresses, justifying substituted service.
Legal principles established
#- Parties whose registered titles to the suit property will be affected by the outcome of a suit are necessary parties who must be joined to be heard
- A court may presume, under Article 159 of the Constitution, that a party who used 'enjoin' intended to seek joinder
Court orders
#- 1.Leave granted for joinder of the fifteen named intended respondents to the suit as respondents
- 2.Leave granted to amend the originating summons to include the intended respondents and the new parcel numbers
- 3.Leave granted for substituted service of the application and subsequent pleadings by affixing them on the notice boards of Embu Law Courts and Siakago Law Court
- 4.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1, 1A, 3, 3A and 100 of the Civil Procedure Act and Order 8 Rules 1 and 3, Order 5 Rule 17, Order 1 Rule 10(2) of the Civil Procedure Rules 2010
Relief refused
#Prayer 1
The court noted it had become moot
Costs
Costs shall be in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly the application is allowed as prayed and costs shall be in the cause.
In the circumstances I find thise claim and cause of action to be different and the matter herein is not res judicata.
In the circumstances therefore, the said intended respondents are proper parties to be joined in this suit as respondents.
The prayer for amendment is therefore also allowed in order to reflect the real parties having an interest in the suit property and the exact parcels of land which are now in dispute.
In the circumstances I am inclined to allow service by way of substituted service as prayed for in the application.
Issues in the judgment
#Date discrepancy: motion dated 16th September 2021 but stated to have been filed on 27th October 2020
Respondents' submissions refer to section 34 of the Civil Procedure Rules, though section 34 is a provision of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eunice Wangui Mbogo & another v Margaret Mbucu Mathuri (Sued as Administrator of Adriano Mathuri Ngondi) & 2 others [2022] KEELC 188 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/188/eng@2022-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.