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ELCAllowed(Not stated in judgment)· [2022] KEELC 3918 (KLR)

Bigogo v Marita & 3 others; Nduko & another (Interested Parties) (Environment & Land Case 208 of 2017) [2022] KEELC 3918 (KLR)

Environment and Land Court
12 May 2022
JOJ. M. Onyango
3,189 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan land court allowed two buyers whose titles were cancelled to join an ownership lawsuit late, and let a defendant fix his pleadings by paying costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii (J.M. Onyango, J) disposed of two concurrent applications: one dated September 29, 2021 by Esther Nyanchama Nduko and Charles Nyakebaka seeking joinder to the suit as defendants, and one dated September 30, 2021 by the 1st defendant seeking leave to amend his defence and counterclaim to include a liquidated claim. The applicants purchased parcels 8139 and 8134 for Kshs 1,050,000/= and Kshs 1,000,000/= respectively, but their titles were extinguished when parcel 7100 was cancelled pursuant to a consent order in Kisii HC Succession Cause No 596 of 2012; their parcels were subsumed in parcel 9701 registered in the plaintiff's name, and they feared losing their investments without compensation. The plaintiff opposed, citing delay, his having already testified, non-compliance with the Government Proceedings Act, unclean hands, and res judicata arising from the succession cause. Applying Order 1 rule 10 and Order 8 rule 3 of the Civil Procedure Rules, and authorities including Central Kenya Ltd v Trust Bank, the court held that joinder is permitted at any stage where the party's presence is necessary for complete adjudication, that refusing joinder would cause multiplicity of suits contrary to the overriding objective, that mere delay is not a bar where compensated by costs, and that res judicata did not arise since the High Court lacked jurisdiction over the land claims in the succession cause. Both applications were allowed, with costs to the plaintiff.

Key legal issues

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01

Joinder of the applicants as defendants

Holding

Joinder allowed; the applicants occupy parcels affected by orders likely to be made in the suit.

Reasoning

The applicants' titles were extinguished when parcel 7100 was cancelled following a consent order in Kisii HC Succession Cause No 596 of 2012, and they occupy parcels now subsumed in parcel 9701, the subject of the suit. Order 1 rule 10 permits joinder at any stage. Refusing joinder would force separate suits, causing multiplicity contrary to the overriding objective of the Environment and Land Court Act.

p. 5
02

Leave to amend defence and counterclaim

Holding

Leave granted despite delay and prior unacted-upon leave; plaintiff compensated by thrown away costs.

Reasoning

Mere delay is not a ground to refuse an amendment unless it prejudices the opposite party beyond monetary compensation in costs. The res judicata objection fails because the High Court in the succession cause lacked jurisdiction over the defendants' land claims and advised them to file in the Environment and Land Court. Justice is served by determining all controversies once and for all.

p. 6

Legal principles established

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  • Joinder under Order 1 rule 10 may be ordered at any stage where the presence of the party is necessary for complete adjudication.
  • Amendments should be freely allowed at any stage unless they cause prejudice not compensable in costs.

Court orders

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  1. 1.Esther Nyanchama Nduko and Charles Nyakebaka shall be made parties to this suit as defendants.
  2. 2.The pleadings shall be served upon them within 14 days to enable them file their responses within 14 days after service.
  3. 3.The applicants shall bear the costs of the application dated September 29, 2021, payable to the plaintiff/respondent.
  4. 4.The 1st defendant is granted leave to amend his defence and counterclaim within 14 days.
  5. 5.The 1st defendant shall pay thrown away costs assessed at Kshs 25,000/= to the plaintiff/respondent before the next hearing date.
Jurisdiction invoked
Environment and Land Court Act (original jurisdiction)

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, "Bigogo v Marita & 3 others; Nduko & another (Interested Parties) (Environment & Land Case 208 of 2017) [2022] KEELC 3918 (KLR)", Case Analysis (2022). (Not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3918/eng@2022-05-12

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