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ELCPartially AllowedNot stated in the judgment (Machakos ELC suit; notice of motion dated January 15, 2022)· [2022] KEELC 3861 (KLR)

Lakeview Investments Limited v Odero (Sued as the Chairman, Nairobi Kenya Secondary Schools Heads Association); Ishiundu (Proposed Defendant) (Environment & Land Case 280 of 2017) [2022] KEELC 3861 (KLR)

Environment and Land Court
25 July 2022
2,430 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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A Kenyan land buyer who purchased her plot from a company's former director was joined as a defendant in a land dispute, despite a name mismatch.

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 Machakos (Christine Ochieng, J) delivered virtually on July 25, 2022 on the plaintiff's notice of motion dated January 15, 2022, brought under Order 22 rule 22(1), Order 51 rule 1, Order 1 rule 10(2), Order 45 rules 1(a) and 2(1) of the Civil Procedure Rules and sections 1A, 1B, 3A, 3B and 63(e) of the Civil Procedure Act. The plaintiff sought a stay of execution of the May 15, 2020 orders that had found its director, Joseph Oduor Okwaro, in contempt of the injunction orders of January 25, 2019 relating to suit properties Mavoko LR No 20154-20163, and sought to enjoin Shilla Ishiundu as a defendant with leave to amend the plaint. The defendant raised a preliminary objection on res judicata and functus officio and opposed the joinder, while the proposed defendant, swearing as Sheila Likhwechi Ashiono, denied any nexus to the suit properties, claiming she had bought her portion from Julius Mwangi Kamau, a former director of the plaintiff. Since the director had already been sentenced for contempt, the court framed the sole issue as whether the proposed defendant should be joined. Applying Order 1 rule 10(2) and the principles in Pravin Bowry, Deported Asians Custodian Board and Civicon Limited, the court found a strong nexus between her land and the suit property, including competing titles to the same land. The application was found partially successful: prayers 3 and 4 were allowed, the plaint was to be amended and served within seven days, defendants given fourteen days to file defences, and costs were granted in the cause. The stay of execution prayer was not granted.

Key legal issues

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01

Whether the proposed defendant should be joined as a party under Order 1 rule 10(2) of the Civil Procedure Rules

Holding

The joinder was allowed because the proposed defendant demonstrated a strong nexus to the suit land, having purchased a portion from a former director of the plaintiff, annexed the original sale agreement and constructed a permanent house and perimeter wall on it.

Reasoning

The court applied Order 1 rule 10(2) and the principles in Pravin Bowry v John Ward, Deported Asians Custodian Board v Jaffer Brothers Ltd and Civicon Limited v Kivuwatt Limited. The dispute centred on competing titles to the same land. The proposed defendant admitted purchasing her portion from a former director, annexed the initial sale agreement, and had constructed thereon. Her presence was necessary to enable the court effectually and completely adjudicate upon all questions, and she would be affected by any decision in the suit.

p. 5
02

Whether the discrepancy in the proposed defendant's name (Shilla Ishiundu vs Sheila Ashiono) defeated the application

Holding

The name discrepancy did not defeat the joinder given her admitted purchase, annexed sale agreement and construction on the land.

Reasoning

Although the plaintiff referred to the proposed defendant as Shilla Ishiundu while she swore her replying affidavit as Sheila Likhwechi Ashiono, the court held that the admitted facts - purchase of a portion of the suit property from a former director, annexation of the initial sale agreement and construction thereon - could not be ignored by the court despite the opposition of the defendant and proposed defendant.

p. 4

Legal principles established

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  • Under Order 1 rule 10(2), a person whose presence is necessary to enable the court effectually and completely adjudicate upon and settle all questions in the suit may be added as a party at any stage.
  • A party need only demonstrate sufficient interest in the suit to be joined; the interest need not ultimately succeed at trial.

Court orders

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  1. 1.Prayer No 3 allowed: Shilla Ishiundu enjoined as a defendant and leave granted to the plaintiff to amend the Plaint accordingly
  2. 2.Prayer No 4 allowed: the proposed defendant to be served and file her response to the application within seven days from the date of service
  3. 3.The plaint to be amended and served on all parties within seven days from the date of the ruling
  4. 4.All the defendants granted leave of fourteen days to file and serve their respective defences after service of the amended plaint
  5. 5.Stay of execution of the May 15, 2020 contempt orders (prayer No 2) refused as the court allowed only prayers 3 and 4
  6. 6.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 rule 22(1)
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure RulesOrder 1 rule 10(2)
  • Civil Procedure RulesOrder 45 rules 1(a) & 2(1)
  • Civil Procedure Actsections 1A, 1B, 3A, 3B & 63(e)

Cases cited (14)

  • John Harun Mwau Vs Simone Hayson & 2 others, Nairobi High Court Civil Suit No 115 of 2019
  • Meme Vs Republic
    (2004) 1EA 124
  • Kenya Electricity Transmission Co Ltd Vs Kibii Arap Biego & 14 Others Eldoret Holdings Co Ltd (proposed Interested Party)
    (2021) eKLR
  • Departed Asians Property Custodian Board Vs Jaffer Brothers Ltd
    (1999) 1EA 55 (SCU)
  • Robert Githua Thuku V William Ole Nabala & 9 Others
    (2018) eKLR
  • Republic Vs Attorney General & Another Ex parte Mike Maina Kamau
    (2020) eKLR
  • Indian Airports Employees Union Vs Ranjan Catterjee & Another
    (AIR) 1999 SC 880
  • Kingori Vs Chege & 3 Others
    (2002) 2 KLR 243
  • Zephir Holdings Ltd Vs Mimosa Plantations Ltd Jeremiah Matagaro & Ezekiel Misango Mutisya
    (2014) eKLR
  • Abdul Karim Khan V Mohamed Roshan
    (1965) EA 289 CA
  • Eastern Bakery Vs Castellino
    (1958) EA 461
  • Pravin Bowry v John Ward and Another
    [2015] eKLR
  • Deported Asians Custodian Board v Jaffer Brothers Ltd
    [1999] 1 EA 55 (SCU)
  • Civicon Limited v Kivuwatt Limited and 2 Others
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction; application brought under Order 22 rule 22(1), Order 51 rule 1, Order 1 rule 10(2), Order 45 rules 1(a) & 2(1) of the Civil Procedure Rules and sections 1A, 1B, 3A, 3B & 63(e) of the Civil Procedure Act

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, "Lakeview Investments Limited v Odero (Sued as the Chairman, Nairobi Kenya Secondary Schools Heads Association); Ishiundu (Proposed Defendant) (Environment & Land Case 280 of 2017) [2022] KEELC 3861 (KLR)", Case Analysis (2022). Not stated in the judgment (Machakos ELC suit; notice of motion dated January 15, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3861/eng@2022-07-25

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