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ELCAllowedELC Case No. 23 of 2020· [2022] KEELC 1680 (KLR)

Jack Mathenge Giturwa & another v Citimark Investment Limited [2022] KEELC 1680 (KLR)

Environment and Land Court
10 February 2022
COChristine Ochieng
2,279 words in judgment
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The bottom line

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A Kenyan court allowed a landbuyer to drag the original vendors into a title dispute years after pleadings closed, because joining them helped the court resolve everything at once.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (Christine Ochieng, J) determined a Chamber Summons application dated 21st December 2020 by the Defendant, Citimark Investment Limited, seeking leave under Order 1 Rule 14(1) of the Civil Procedure Rules to issue and serve a Third Party Notice on the Administrators of the Estate of Mwangangi Muvu Nganga, the vendors from whom the Defendant claimed to have purchased the suit land, Donyo Sabuk/Komarock Block 1/28136. The Plaintiffs, who hold title to the land and sued for declaration of ownership, permanent injunction, demolition and eviction, opposed the application, arguing it was filed more than two years after close of pleadings, contrary to Order 1 Rule 15, without explanation for the delay, and that any claim against the vendors could be litigated separately. The court found pleadings had closed around end of May 2018 and that the Defendant did not explain the delay. Nonetheless, relying on Order 1 Rule 15(1) and the authorities Thachmaanz Ltd v Pride Inn Ltd and Yafesi Walusimbi v Attorney General of Uganda, the court held that the delay was not inordinate, the suit had not been set down for hearing, the Plaintiffs identified no prejudice, and the administrators - who sold the same land to both parties - were necessary for the court to effectually and completely adjudicate. The application was allowed with directions for service within 14 days, response within 14 days, and costs in the cause.

Key legal issues

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01

Whether leave should issue for a third party notice filed long after close of pleadings

Holding

Leave granted despite unexplained delay because the suit had not been set down for hearing and the plaintiffs suffered no prejudice

Reasoning

Pleadings closed around end of May 2018 and the application was filed more than two years later with no explanation for the delay. However, the court found the delay not inordinate, the matter not set down for hearing, the plaintiffs had not identified prejudice, and the proposed third parties (the vendors who sold the same land to both sides) were necessary for complete adjudication. The interest of justice favoured joinder.

p. 3
02

Whether the proposed third parties met the criteria under Order 1 Rule 15(1)

Holding

Yes - the questions between the defendant and the administrators were substantially the same as those between the plaintiffs and the defendant regarding entitlement to the suit land

Reasoning

The defendant claimed it purchased the suit land from the administrators under a 2015 sale agreement and paid substantial sums, while the plaintiffs claimed to be bona fide purchasers from the same vendors. The court found the administrators' involvement necessary to determine who had a right to sell and who is entitled to the suit land.

p. 3

Legal principles established

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  • A third party should be joined where the question between the third party and the defendant is substantially the same as that between the plaintiff and defendant, and no prejudice will be suffered, particularly where the suit has not proceeded to hearing
  • To join a third party, the subject matter between the third party and defendant must be the same as the subject matter between plaintiff and defendant, and the original cause of action must be the same
  • Delay in applying for leave to issue a third party notice, if not inordinate, may be excused in the interest of justice

Court orders

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  1. 1.The Defendant's Chamber Summons application dated 21st December 2020 is allowed; leave granted to issue and serve a Third Party Notice upon the Administrators of the Estate of Mwangangi Muvu Nganga
  2. 2.Third Party to be served within 14 days from the date of the ruling
  3. 3.Upon service, the Third Party to file their response within 14 days
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 14(1)
  • Civil Procedure RulesOrder 1 Rule 15(1)
  • Civil Procedure RulesOrder 1 Rule 15
  • Civil Procedure RulesOrder 2 Rule 13

Cases cited (4)

  • Richard Ngatia Waweru V Arvind Vohora
    (2016) eKLR
  • Lucy Njeri Mwangi V John Irungu Murigi
    (2019) eKLR
  • Thachmaanz Ltd v Pride Inn Ltd
    [2016] eKLR
  • Yafesi Walusimbi -vs- Attorney General of Uganda
    (1959) EA 223
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application brought under Order 1 Rule 14(1) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Jack Mathenge Giturwa & another v Citimark Investment Limited [2022] KEELC 1680 (KLR)", Case Analysis (2022). ELC Case No. 23 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1680/eng@2022-02-10

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