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ELCPartially AllowedNot stated in judgment (Originating Summons dated 22/7/2019; Notice of Motion dated 24/11/2020)· [2022] KEELC 1641 (KLR)

Joseck Njue Mbaka v Kuura Murango; Purity Mukami Njue (Intended 2nd Respondent/ Interested Party) [2022] KEELC 1641 (KLR)

Environment and Land Court
18 January 2022
3,537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Land Court added a buyer to an adverse possession suit and blocked land dealings, but refused to stop use because the claimant missed key injunction requirements.

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 Embu on a notice of motion dated 24th November 2020 by the plaintiff, Joseck Njue Mbaka, in an adverse possession suit over land parcel Evuvore/Evuvore/334 registered in the name of the defendant, Kuura Murango. During the pendency of the suit the defendant subdivided the parcel into 4202 and 4203 and sold 4202 to Purity Mukami Njue, the intended 2nd respondent. The applicant sought joinder of the purchaser, leave to amend pleadings, a temporary injunction, and an order of inhibition. The court framed four issues. It held that the purchaser is a necessary party under Order 1 Rule 10(2) of the Civil Procedure Rules since orders on the property would directly affect her registered interest, and joined her as a defendant. Leave to amend was granted to substitute the original parcel number with the resultant subdivisions, the court reasoning that no effective order can be made on a non-existent parcel. The prayer for temporary injunction was refused because the applicant failed to demonstrate the Giella v Cassman Brown threshold and gave no undertaking in damages, the court finding damages an adequate remedy. However, an order of inhibition under Section 68(1) of the Land Registration Act was granted, the court finding the defendant's subdivision and sale during pendency showed bad faith and a real risk of dealings defeating the interests of justice, and the applicant's case arguable. Costs were not asked for, and no order as to costs was made. Ruling delivered on 18th January 2022 by A.K. Kaniaru J.

Key legal issues

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01

Whether the purchaser of a resultant subdivision of the suit parcel should be joined as a defendant

Holding

She is a necessary and proper party whose presence enables the court to settle all questions and protects her from being condemned unheard

Reasoning

The respondent subdivided the suit parcel during the pendency of the suit and sold parcel 4202 to the intended 2nd respondent, who admitted the purchase. The court invoked Order 1 Rule 10(2) under the overriding objective, holding that any orders on the property would directly affect her interest, and her joinder avoids a multiplicity of suits.

p. 3
02

Whether leave to amend the pleadings should be granted

Holding

Amendment allowed to join the purchaser and substitute the original parcel number with the resultant subdivisions

Reasoning

Amendments should be liberally allowed at any stage before judgment unless they occasion injustice. The subdivision closed the original title, rendering the suit parcel non-existent; orders on a non-existent parcel would be of no effect. Substitution enables effective determination of the dispute with no prejudice to any party.

p. 4
03

Whether a temporary injunction should issue

Holding

Refused - the applicant failed to meet the Giella v Cassman Brown threshold and gave no undertaking in damages

Reasoning

The applicant was expected to demonstrate a prima facie case with probability of success, irreparable loss not compensable by damages, and balance of convenience. This was not demonstrated, and no undertaking to pay damages was given, which is itself a criterion for the grant of an injunction.

p. 4
04

Whether an order of inhibition should issue under Section 68(1) of the Land Registration Act

Holding

Granted - the property was at risk of alienation and the applicant's case was arguable

Reasoning

The respondent subdivided and sold a portion of the suit parcel while the case was pending, showing bad faith and a real risk of further dealings defeating the interests of justice. The applicant's case was certainly arguable, and refusal would render his suit nugatory, satisfying the conditions set out in the cited authorities.

p. 4

Legal principles established

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  • A person who acquires a property that is the subject of a pending suit, being a resultant subdivision of the suit parcel, is a necessary party whose joinder enables the court to effectually and completely adjudicate on all questions in the suit
  • Where a suit parcel is subdivided during the pendency of a suit and the original title closed, the pleadings should be amended to substitute the original parcel number with the resultant subdivisions, since no effective order can be made on a non-existent parcel
  • An undertaking to pay damages is a criterion for granting an injunction; where none is given, an injunction cannot issue
  • Under Section 68(1) of the Land Registration Act, an order of inhibition may issue where the suit property is at risk of alienation, the refusal would render the suit nugatory, and the applicant has an arguable case

Court orders

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  1. 1.Purity Mukami Njue is joined to the suit as a co-defendant
  2. 2.Leave granted to amend the Notice of Motion dated 11/3/2020 and the Originating Summons dated 22/7/2019, including substitution of land parcel Evuvore/Evuvore/334 with resultant subdivisions 4202 and 4203
  3. 3.Prayer for temporary injunction declined
  4. 4.An order of inhibition granted inhibiting registration of any dealings with land parcels Evuvore/Evuvore/4202 and 4203 pending hearing and determination of the suit
  5. 5.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rules 3, 4 & 5
  • Civil Procedure RulesOrder 10
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 & 4
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 8 Rule 3; Order 8 Rule 5(1)
  • Land Registration Act 2012Section 68(1)
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Constitution of Kenya, 2010Articles 47 and 50

Cases cited (8)

  • Harrison C. Kariuki v Blueshield Insurance Company Ltd
    [2006] eKLR
  • Central Kenya Ltd v Trust Bank Ltd
    [2000] EALR 365
  • Freight Forwarders Kenya Limited v Aya Investments Uganda Limited
    [2014] eKLR
  • East Bakery v Castelino
    (1958) E.A. 461
  • Giela Vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • GATI Vs BARCLAYS BANK (K) LTD
    [2001] KLR 525
  • DORCAS MUTHONI & 2 OTHERS Vs MICHAEL IRERI NGARI
    [2016] EKLR (ELC No. 324 of 2015, Embu)
  • JAPHET KAIMENYI M'NDATHO Vs M'NDATHO M'MBWIRIA
    [2012] eKLR
Jurisdiction invoked
Order 8 rules 3, 4 & 5; Order 10; Order 40 Rules 1, 2, 3 & 4 of the Civil Procedure Rules; Section 68(1) of the Land Registration Act 2012; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Articles 47 and 50 of the Constitution, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseck Njue Mbaka v Kuura Murango; Purity Mukami Njue (Intended 2nd Respondent/ Interested Party) [2022] KEELC 1641 (KLR)", Case Analysis (2022). Not stated in judgment (Originating Summons dated 22/7/2019; Notice of Motion dated 24/11/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1641/eng@2022-01-18

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