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ELCOther· [2022] KEELC 2391 (KLR)

Motiga & another (Suing as Administrators of the estate of Moses Harry Motiga) v Gitangu & 6 others (Sued as Administrators of the estate of Elizabeth Wanjiru Gitangu) (Environment & Land Case E071 of 2020) [2022] KEELC 2391 (KLR)

Environment and Land Court
26 May 2022
BEB M Eboso
1,559 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Thika refused to remove KCB from a land dispute, ruling a bank accused of fraud over a title release must stay in the case.

What this practically means

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Executive summary

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The suit concerns land formerly registered as Ngenda/Githunguchu/T.25, originally registered in the name of the late Moses Motiga and charged to KCB Ltd between 1969 and 1971, the last charge securing Kshs 50,000. Parallel succession proceedings were initiated over the deceased's estate: the plaintiffs were appointed administrators in Nairobi High Court Succession Cause No 2245 of 1998, while in Thika CMC Succession Cause No 580 of 2010 Elizabeth Wanjiru Gitangu obtained orders under which the land was registered in her name on 21/5/2012, the same day the KCB charge was shown as discharged and she became absolute proprietor. The land later passed to Margaret Gathoni Gitangu and, after subdivision in 2018, to the 3rd and 4th defendants. The plaintiffs contend the post-2012 register entries were fraudulent and procured through collusion, and fault KCB for releasing the title and processing the discharge contrary to the Banking Act and CBK Prudential Guidelines. KCB brought a notice of motion dated 22/11/2021 seeking to be struck out as an unnecessary party, arguing its interest was extinguished upon discharge of the charge. The plaintiffs opposed, stating the circumstances of the release of the title could only be explained by KCB. The court, applying Order 1 rule 10(2) of the Civil Procedure Rules, held that KCB is a necessary party for effectual adjudication of the questions of release of the title and discharge of the charge, and that allegations of fraud are matters for trial. The court also observed, without definitive pronouncement, that the plaintiffs may wish to reflect on the ELC's jurisdiction to in essence review succession orders. The motion was rejected with costs in the cause.

Key legal issues

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01

Whether KCB Ltd is a necessary party to the suit

Holding

The application to remove KCB was rejected; it is a necessary party

Reasoning

The plaintiffs alleged fraud and collusion against KCB in the release of the original title and processing of the discharge of charge. Whether fraud or collusion occurred is a matter for trial. Without KCB, the court cannot effectually and completely adjudicate on those questions, so it is a necessary party under Order 1 rule 10(2).

p. 3
02

Whether the ELC may in essence review succession orders made under the Law of Succession Act

Holding

The court raised this as an obiter observation without definitive pronouncement, inviting parties to reflect on jurisdiction

Reasoning

The judge noted the plaintiffs are effectively challenging succession orders in Thika CMC Succession Cause No 580 of 2010 and observed it is unclear whether an application has been made in that cause to set aside the orders, but expressly declined to make a conclusive pronouncement.

p. 4

Legal principles established

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  • A party whose presence is necessary for the court to effectually and completely adjudicate on all questions in a suit should not be struck out under Order 1 rule 10(2)

Court orders

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  1. 1.The Notice of Motion dated 22/11/2021 is rejected
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10(2)
  • Law of Succession Actgeneral
  • Banking Actgeneral
Jurisdiction invoked
Environment and Land Court jurisdiction; joinder under Order 1 rule 10(2) of the Civil Procedure Rules

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, "Motiga & another (Suing as Administrators of the estate of Moses Harry Motiga) v Gitangu & 6 others (Sued as Administrators of the estate of Elizabeth Wanjiru Gitangu) (Environment & Land Case E071 of 2020) [2022] KEELC 2391 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2391/eng@2022-05-26

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