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ELCPartially AllowedNot stated in the extract (suit in respect of land parcel Kwale/Diani Complex/1069)· [2022] KEELC 823 (KLR)

Jeremiah Creek Limited v Tabitha Ndung’u; Andrew Thiaine Imwati (Interested Party) [2022] KEELC 823 (KLR)

Environment and Land Court
17 March 2022
2,727 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court can join a Land Registrar as a defendant in a land dispute, even years into the case, when fraud is alleged.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Kwale on a Notice of Motion dated 14th January 2022 by the Defendant in a suit concerning land parcel Kwale/Diani Complex/1069. The Plaintiff, claiming to be the registered owner, sought eviction of the Defendant, the widow and personal representative of the late Charles Kamau, alleging invasion of the land. The Defendant denied the Plaintiff's title, alleging the transfer to the Plaintiff was fraudulently procured in collusion with the Land Registrar Kwale, and filed a counterclaim seeking a declaration that the transfer was fraudulent. By the application, the Defendant sought stay of proceedings, leave to enjoin the Land Registrar Kwale as a necessary party, and leave to re-amend the defence and counterclaim. The Plaintiff opposed, arguing the application was made five years after filing, was defective for not specifying the Registrar's capacity, and that the Registrar could be summoned as a witness. The court framed one main issue: whether the Land Registrar Kwale should be enjoined as a necessary party. Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the principles in Peter Irungu Wainaina v Chege Njihia & Others, the court held the Registrar's presence necessary because allegations of fraud and collusion were levelled against him and orders were sought against his office, which could not hide behind the guise of being a mere office-holder. The court directed joinder as 2nd Defendant for clarity, allowed the amendments with timetabled filing and service directions, set the matter down for further directions on priority basis, and awarded costs of the application to the Plaintiff.

Key legal issues

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01

Whether the Land Registrar Kwale is a necessary party

Holding

Yes - allegations of fraud and collusion against the Registrar, and prayers directed at him, mean his participation is necessary for the court to adjudicate completely

Reasoning

The pleadings raised allegations of fraud and collusion between the Plaintiff and the Land Registrar in effecting the transfer, and the Defendant's counterclaim sought orders against the Registrar, including production of original transfer documents and cancellation of the title. An effective decree could not be implemented without the Registrar before the court. His participation would enable the court to examine the issues in totality and reach an informed determination.

p. 3
02

Whether delay (about 5 years since filing) defeats an application for joinder and amendment

Holding

No - the need for substantive justice overrides concerns about delay and uncompensable prejudice

Reasoning

The Plaintiff argued that the application made five years after suit filing was not in good faith and that prolonged non-occupation of the suit property could not be compensated by costs. The court held that the overriding consideration is whether the amendments are necessary for the just determination of the controversy, and that the need for substantive justice overrides such concerns, guided by Article 159's command against undue regard to technicalities.

p. 3
03

In what capacity should the Registrar be joined, given the application did not specify

Holding

As a 2nd Defendant, for clarity, since the Rules contemplate defendants and plaintiffs and joinder as interested party is an emerging practice

Reasoning

Counsel for the Plaintiff objected that the application did not state whether the Registrar would be an interested party, defendant or third party, and that this would confuse the court. The court accepted the point had merit but held it was not a basis for rejecting the application. Considering the Registrar's role in producing documents and explaining the transactions, the court directed joinder as a defendant.

p. 3

Legal principles established

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  • A party adversely mentioned in pleadings whose participation is needed to effectually and completely adjudicate upon all questions in the suit may be joined at any stage as a necessary party
  • The office of the Land Registrar cannot avoid accountability in litigation questioning the validity of a transfer by claiming to be a mere office-holder
  • Substantive justice prevails over technical objections to the form of a joinder application

Court orders

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  1. 1.Leave granted to enjoin the County/District Land Registrar Kwale as 2nd Defendant
  2. 2.Defendant to file and serve its amended defence and counterclaim within 14 days, in default of which the leave granted shall lapse
  3. 3.Plaintiff at liberty to respond within 14 days of service
  4. 4.Defendant to serve the Land Registrar Kwale the pleadings within 14 days; Registrar to respond within 21 days of service
  5. 5.The rest of the parties to respond to the amended pleadings as they deem necessary within 7 days of service
  6. 6.Plaintiff to file and serve a reply to the amended defence to counterclaim within 14 days from date of service of the amended pleadings
  7. 7.Costs of the application to the plaintiff
  8. 8.Matter to be set down for further directions on priority basis

Authorities

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Legislation

  • Civil Procedure Actsection 1A
  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 159

Cases cited (6)

  • Central Kenya Ltd Versus Trust Bank & 5 Others
    [2000] eKLR
  • Peter Irungu Wainaina Versus Chege Njihia & Others
    [2018] eKLR
  • Technomatic Limited T/A Promopack Company Vs. Kenta Wine Agencies Limited & Another
    (2014) eKLR
  • Werrot & Co. Ltd & 3 Others Vs. Andrew Douglas Gregory & 2 Others
    [1998] eKLR
  • Ruai Central 54 Association Versus Paddy Ngángá & Another
    [2020] eKLR
  • Pizza Harvest Ltd Versus Felix Midigo
    [2013] eKLR
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya, 2010

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, "Jeremiah Creek Limited v Tabitha Ndung’u; Andrew Thiaine Imwati (Interested Party) [2022] KEELC 823 (KLR)", Case Analysis (2022). Not stated in the extract (suit in respect of land parcel Kwale/Diani Complex/1069). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/823/eng@2022-03-17

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