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ELCAllowedELC Appeal (Kerugoya), Memorandum of Appeal dated 6th January, 2020· [2022] KEELC 3971 (KLR)

Kinuthia v Gichobi & 2 others (Environment and Land Appeal 1 of 2020) [2022] KEELC 3971 (KLR)

Environment and Land Court

13 May 2022

ECE.C. Cherono

2,166 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan land buyer who occupied purchased land for 20 years won the right to join a court case deciding that land's ownership.

What this practically means

Executive summary

This was a first appeal to the Environment and Land Court at Kerugoya against a ruling of Hon. Y.M. Barasa, Senior Resident Magistrate, delivered on 18th December 2019, dismissing the Appellant Hillary Kinuthia's Notice of Motion dated 30th September 2019. By that application, brought under Order 1 Rule 10 of the Civil Procedure Rules, 2010, the Appellant sought to be joined as an interested party in ELC Civil Suit No. 117 of 2019 concerning land parcel Baragwe/Kariru/2492, together with an injunction restraining the respondents from obtaining land board consent, transferring the title or taking possession, and stay/setting aside of consent orders obtained on 4th September 2019. The appeal advanced seven grounds, including that the Appellant had occupied and developed the land for over twenty years under a sale from Gichobi Kariuki, the defendant in the former suit, and that the suit and consent orders were a conspiracy among close relatives to defeat his interest. The 1st and 2nd Respondents opposed, noting the absence of a title or search in the Appellant's favour and relying on a High Court order in Nyeri HCCC No. 180 of 1983 registering the 3rd Respondent as owner. E.C. Cherono, ELC Judge, held that a proposed interested party need only show a stake in the subject matter and an arguable application raising a triable issue; the Appellant's uncontroverted sworn averments of purchase, possession and development sufficed. The appeal was allowed on grounds 1, 3, 4, 5, 6 and 7; the trial court's ruling was set aside and substituted with orders joining the Appellant as an interested party, issuing an injunction to preserve the property, granting leave to file a response within fourteen days, remitting the matter to the magistrates' court, and directing each party to bear their own costs.

Key legal issues

Joinder of an interested party under Order 1 Rule 10(2) CPR

Holding

Unsworncontroverted averments of purchase and long possession sufficed to admit the appellant as an interested party; the trial magistrate erred in dismissing the application.

Reasoning

The court held that a proposed interested party must show a stake in the subject matter and an arguable, non-tenuous application raising a triable issue. The appellant deposed on oath that the defendant in the former suit sold him the suit land, that he had possessed it for twenty years and developed it. Those sworn averments were not controverted, and were sufficient grounds for joinder.

p. 4

Conservation of the subject matter pending hearing

Holding

It was prudent for the trial magistrate to issue conservatory orders restraining alienation of the suit property.

Reasoning

The court found that conservatory orders were warranted to preserve the subject matter of the dispute from being rendered nugatory, restraining the respondents from obtaining land board consent, transferring the title or taking possession pending hearing of the suit.

p. 4

Legal principles established

A party seeking joinder need only demonstrate a stake in the subject matter and an arguable application raising a triable issue.

Court orders

1.The Ruling of Hon. Y.M. Barasa dated 18/12/2019 dismissing the Notice of Motion dated 30/09/2019 is set aside and/or vacated and substituted with an order allowing the application
2.Hillary Kinuthia joined as an interested party
3.An order of injunction restraining the plaintiffs and the defendant from obtaining LCB consent, transferring the title deed, taking possession or interfering with land parcel No. Baragwe/Kariru/2492 pending the hearing of the suit
4.The interested party granted leave to file and serve his response to the plaintiffs' claim within fourteen days
5.Each party to bear their own costs of this appeal and the said application
6.The matter remitted back to the Magistrate Court for hearing and determination
7.Mention before the Chief Magistrate, Kerugoya on 24/05/2022 for directions

Authorities

Legislation

Civil Procedure Rules, 2010Order 1 Rule 10(2)

On appeal from: Magistrates' Court (Senior Resident Magistrate); ELC Civil Suit No. 117 of 2019 (former suit)
Jurisdiction invoked: First appeal from the magistrates' court; application under Order 1 Rule 10 of the Civil Procedure Rules, 2010

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kinuthia v Gichobi & 2 others (Environment and Land Appeal 1 of 2020) [2022] KEELC 3971 (KLR)", Case Analysis (2022). ELC Appeal (Kerugoya), Memorandum of Appeal dated 6th January, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3971/eng@2022-05-13

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