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ELCAllowedELC No. 1 of 2020· [2022] KEELC 887 (KLR)

Leah Cherono Sowek & another v Paul Kipkurui Cheruiyot & 5 others [2022] KEELC 887 (KLR)

Environment and Land Court of Kenya
10 March 2022
EOE. OBAGA
1,387 words in judgment
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The bottom line

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Kenya's Environment and Land Court held that even someone facing forgery charges must be joined to a land case if eviction orders would affect their property interests.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (E. Obaga, J) on a Notice of Motion dated 24th February 2021 by Judah Kimuge, the proposed 7th Defendant, seeking joinder in a suit concerning ownership of LR No. Uasin Gishu/Ilulla Settlement Scheme/128, originally registered in the name of Philip Kipchirchir Sowek (deceased) and subdivided into titles Nos. 1722-1740. The Plaintiffs' amended plaint sought eviction orders against all occupants of the subdivisions. The Applicant asserted he is the registered owner of LR Nos. 1722 and 1723 and that orders in the suit would affect him, yet he had not been sued. The Plaintiffs opposed, contending his titles were forgeries and the subject of 12 criminal counts in Eldoret Chief Magistrate's Court Criminal Case No. E832 of 2021, and that joinder would enable him to sanitize forged titles to their prejudice. The court framed a single issue: whether the Applicant met the threshold for joinder. Applying Order 1 Rule 10(2) principles drawn from Pravin Bowry v John Ward, Deported Asians Property Custodian Board v Jaffer Brothers, Civicon v Kivuwatt, Meme v Republic and other authorities, the court held that a party need only demonstrate sufficient interest, and that the Applicant's interests would be adversely affected by any eviction orders. The pendency of criminal charges did not bar joinder, given the presumption of innocence and the capacity of civil and criminal proceedings to run concurrently; joinder would not presume the validity of his titles. The application was allowed: the Applicant was joined as the 7th Defendant, pleadings to be served on him within 21 days, with costs in the cause.

Key legal issues

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01

Whether the proposed 7th Defendant met the threshold for joinder under Order 1 Rule 10(2)

Holding

The Applicant demonstrated sufficient interest: eviction orders sought against all occupants of the subdivisions would adversely affect him, so joinder was warranted.

Reasoning

The court applied the principles in Pravin Bowry v John Ward and related authorities: a party whose interests would be affected by the orders sought, or whose presence enables complete adjudication, should be joined. The Plaintiffs sought eviction of all occupants of subdivisions carved from the deceased's land, including the Applicant who holds two titles. The pendency of criminal charges did not displace the presumption of innocence or bar joinder, since civil and criminal proceedings can run in parallel and joinder does not validate his titles.

p. 2
02

Whether the criminal charges against the Applicant for forgery of titles should preclude his joinder

Holding

No. Criminal and civil proceedings can proceed concurrently, and admission of the Applicant does not amount to acceptance of a valid title.

Reasoning

The Respondents argued that joinder would prejudice them because the Applicant faces 12 counts of forgery in Eldoret Chief Magistrate's Court Criminal Case No. E832 of 2021 and would seek to sanitize forged titles. The court held that the civil court will simply consider the evidence adduced; admitting him as a party does not presume the validity of his titles, and the presumption of innocence applies as he has not been convicted.

p. 2

Legal principles established

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  • A person need not have a cause of action against them to be joined; it suffices that their presence is necessary for the effectual and complete adjudication of all questions in the suit, or that the orders sought would legally affect their interests.
  • A person facing criminal charges is presumed innocent, and pendency of criminal proceedings does not by itself bar joinder in related civil proceedings.

Court orders

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  1. 1.The Applicant (Judah Kimuge) is joined in the proceedings as the 7th Defendant
  2. 2.All pleadings in the matter shall be served upon the 7th Defendant within 21 days
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (6)

  • Pravin Bowry -Vs- John Ward & another
    (2015) eKLR, Civil Appeal No. 70 of 2009
  • Deported Asians Property Custodian Board -Vs- Jaffer Brothers Limited
    (1999) 1 EA 55 (SCU)
  • Civicon Limited -Vs- Kivuwatt Limited and 2 others
  • Meme v. Republic
    [2004] KLR 637
  • Commercial Bank of Africa Ltd. v. Isaac Kamau Ndirangu
    Civil Appeal No. 157 of 1991
  • Central Kenya Limited v. Trust Bank Ltd and Others
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules (joinder of parties), inherent civil jurisdiction of the Environment and Land Court

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, "Leah Cherono Sowek & another v Paul Kipkurui Cheruiyot & 5 others [2022] KEELC 887 (KLR)", Case Analysis (2022). ELC No. 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/887/eng@2022-03-10

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