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ELCDismissedNotice of Motion dated 16/10/2020 (suit filed at Migori; suit land Cis-Mara/Ololunga/110)· [2022] KEELC 731 (KLR)

Samwel Malakwen Chumo & 55 others v District Land Registrar, Narok & 2 others [2022] KEELC 731 (KLR)

Environment and Land Court

16 March 2022

MKMohamed N. Kullow

945 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan court refused to let an unregistered group join a land dispute, confirming that only legally registered entities with a direct stake can participate in court cases.

What this practically means

Executive summary

By Notice of Motion dated 16/10/2020, Makuyuni Farms, through its chairman Issack Njenga Kamunga, sought to be enjoined in a substantive suit concerning land parcel Cis-Mara/Ololunga/110 as a defendant and to be allowed to file a defence. The applicants claimed ownership of adjoining parcels 198 and 157 purchased from Gema Holdings, alleged the plaintiffs were trespassers whose titles related to land in the main forest, and relied on prior tribunal, Provincial Appeals Board and High Court decisions in their favour. The application was opposed through a replying affidavit sworn by the 1st defendant with the authority of co-defendants, who argued the applicant was an unregistered, non-existent entity - confirmed by searches at the registers of companies and business names - that the supporting affidavit was signed by a different person, and that no dispute existed between the parties. The court framed two issues: whether the applicant was capable of suing, and whether it had demonstrated a direct interest in the suit land. On the first, the court found no rebuttal to evidence of non-registration and held the applicant was not properly before the court, rendering the application an abuse of process. On the second, applying principles from Peter Nsande Gitau v Thomas Museni Oseko (2017) eKLR, the court found no direct interest demonstrated and no claim by the plaintiffs against the applicants in the pleadings. The Notice of Motion was dismissed with costs on 16 March 2022.

Key legal issues

Whether the applicant is capable of suing/being joined

Holding

The applicant, Makuyuni Farmers, is not a registered entity; searches at the register of companies and business names returned no registration, and this was unrebutted. It is not properly before the court.

Reasoning

The plaintiff produced correspondence from the Registrar of Business Names confirming no registration under the applicant's name. The applicant filed no submissions and did not rebut the evidence of non-registration. In the absence of rebuttal, the court found the applicant to be a non-existent entity in law, making the application an abuse of process.

p. 2

Whether the applicant demonstrated a direct interest in the suit land

Holding

The applicant failed to demonstrate a direct interest; no claim by the plaintiffs against the applicants or their parcel was found in the pleadings.

Reasoning

Applying the principles in Peter Nsande Gitau v Thomas Museni Oseko, the court required proof that the applicant is a necessary party, that a ruling would flow from the proposed defendant to the plaintiff, and that the decree could not be enforced without them. None was shown, since no claim against the applicants appears in the pleadings.

p. 2

Legal principles established

A proposed party must be a legal entity capable of suing or being sued and must demonstrate a direct interest in the subject matter of the suit to be joined
An application by a non-existent entity is an abuse of the process of the court

Court orders

1.The Notice of Motion dated 16/10/2020 is dismissed
2.Costs of the application awarded to the plaintiff/respondent

Authorities

Legislation

Cases cited (1)

Peter Nsande Gitau =vs= Thomas Museni Oseko
(2017) eKLR

Jurisdiction invoked: Inherent jurisdiction to join parties to a suit (joinder of a necessary party); no specific constitutional/statutory provision identified in the judgment

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Samwel Malakwen Chumo & 55 others v District Land Registrar, Narok & 2 others [2022] KEELC 731 (KLR)", Case Analysis (2022). Notice of Motion dated 16/10/2020 (suit filed at Migori; suit land Cis-Mara/Ololunga/110). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/731/eng@2022-03-16

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