Markroscar Kenya Limited v Good Hope Christian Church Kasarani & 12 others (Environment and Land Case Civil Suit 107 of 2010) [2022] KEELC 2379 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to add community group officials to a long-running Kasarani land case, partly because they hid a dismissed earlier suit over the same property.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants qualified for joinder under Order 1 rule 10(2) of the Civil Procedure Rules
The application was dismissed; the applicants did not meet the threshold for joinder nor merit the exercise of the court's discretion.
Joinder under Order 1 rule 10(2) lies only where a person ought to have been joined under Order 1 rule 3 or where their presence is necessary to enable the court to effectually and completely adjudicate on all questions in the suit. The applicants asserted a substantive adverse possession claim against the plaintiff, which could not be determined in this eviction suit if they were joined merely as interested parties; joinder would not assist the court nor prevent multiplicity of suits, as they had already filed a separate adverse possession suit.
Whether the application was an abuse of court process due to non-disclosure of the dismissed adverse possession suit
The court agreed it was an abuse of process to seek joinder in another suit over the same subject matter without disclosing the earlier suit and its dismissal.
The applicants had filed ELC No. 693 of 2012 (O.S), formerly HCCC No. 48 of 2012 (O.S), claiming the same suit property by adverse possession against the same plaintiff; it was dismissed for want of prosecution on 21st June 2017. They concealed this from the court in the joinder application. Non-disclosure of the prior suit and its dismissal, coupled with pursuing the same claim, rendered the application an abuse of process and demonstrated they did not deserve discretionary relief.
Whether joinder would cause delay and prejudice
The orders sought would cause undue delay in a suit pending for 12 years, and no prejudice would befall the applicants if not joined.
The suit had been pending for the last 12 years and was part heard. Joining new parties would require amendment of pleadings and cause delay and injustice to the plaintiff. The applicants were not without remedy: they could seek reinstatement of their dismissed adverse possession suit or pursue HCCC No. 3404 of 1993 which they claimed had stalled.
Legal principles established
#- Although the Civil Procedure Rules do not provide for joinder of interested parties, the court may in appropriate cases join a party as an interested party in exercise of its inherent jurisdiction.
- Under Order 1 rule 10(2), the court may add a person as defendant only where the person ought to have been joined under Order 1 rule 3, or where their presence is necessary to enable the court effectually and completely to adjudicate upon and settle all questions in the suit; the power is discretionary.
- It is an abuse of the process of the court for a party whose suit has been dismissed for want of prosecution to seek to join another suit over the same subject matter and pursue the same claim without disclosing the earlier suit and its dismissal.
Court orders
#- 1.The Notice of Motion dated 23rd October 2018 is dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Inherent jurisdiction of the court together with Order 1 Rule 10 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Markroscar Kenya Limited v Good Hope Christian Church Kasarani & 12 others (Environment and Land Case Civil Suit 107 of 2010) [2022] KEELC 2379 (KLR)", Case Analysis (2022). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2379/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.