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ELCPartially AllowedEnvironment & Land Case 813 of 2014· [2022] KEELC 13607 (KLR)

Ndaisi v Yusuf & 2 others

Environment and Land Court
13 October 2022
LMLucy N Mbugua
1,306 words in judgment
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The bottom line

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A Nairobi land court added two parties to a property dispute and froze the land's status, but left the fraud and ownership fight for full trial.

What this practically means

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Executive summary

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This interlocutory ruling by LN Mbugua J in a partly-heard land suit concerns an application dated April 28, 2022 by the substituted plaintiff, Sofia Juma Ambari Ndaisi, following the death of the original plaintiff Ndaisi Ngonyo. She sought the joinder of Ezekiel Kipkulei C Komen and the Registrar of Titles as 2nd and 3rd defendants and an injunction restraining dealings with land parcel no 14720 Embakasi. She alleged that after paying county rates she discovered the property account had been altered to read Komen as proprietor, that transfer documents and the green card had been fraudulently removed and replaced with an allotment letter and title in Komen's name, and that a new lease had been prepared and backdated to June 1, 1994. Komen opposed, asserting he held a certificate of title and had been in possession since allotment, and that the plaintiff's parcel was different from his. The court applied Order 1 rule 10(2) of the Civil Procedure Rules and the principles in Joseph Njau King'ori, holding that allegations of fraud and ownership could not be resolved at the interlocutory stage but that the proposed defendants were necessary for complete adjudication. Citing Shimmers Plaza on the meaning of status quo, the court allowed the application: it joined the two parties, directed amendment of the plaint and service within 21 days, ordered maintenance of status quo over occupation and registration, and directed registration of an inhibition, with costs to abide the suit.

Key legal issues

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01

Joinder of proposed defendants

Holding

Joinder allowed because the plaintiff alleges the property account and title documents were altered in favour of the proposed 2nd defendant, making his presence necessary for complete adjudication

Reasoning

The court applied Order 1 rule 10(2) CPR and the King'ori criteria. Since the plaintiff alleges fraudulent alteration of records to the proposed 2nd defendant's favour, and that party claims ownership of the parcel, both proposed defendants are necessary for the court to settle all questions. Fraud and ownership are matters for trial, not interlocutory determination.

p. 3
02

Interim protection of the suit property

Holding

Rather than a full injunction, the court ordered maintenance of status quo and registration of an inhibition over parcel no 14720

Reasoning

Given the suit was filed nearly eight years earlier and the court could not know current conditions on the land, preservation-type orders were appropriate. Status quo was defined per Shimmers Plaza as the state of things when the order is made. An inhibition protects the register pending trial.

p. 3

Legal principles established

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  • A party may be joined where their presence is necessary to enable the court effectually and completely to adjudicate upon and settle all questions in the suit (Order 1 rule 10(2))
  • Status quo means the present situation as at the time the order is made

Court orders

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  1. 1.Ezekiel Kipkulei C Komen and the registrar of titles joined as 2nd and 3rd defendants respectively
  2. 2.Plaintiff to amend the plaint and serve summons to enter appearance on the two new parties within 21 days, failing which the orders lapse
  3. 3.2nd and 3rd defendants to enter appearance and file pleadings within 21 days from service
  4. 4.Order for maintenance of status quo in relation to occupation and registration of land parcel no 14720
  5. 5.Order of inhibition to be registered against land parcel no 14720, with the 3rd defendant directed to act accordingly
  6. 6.Costs of the application to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10(2) and (4)

Cases cited (2)

  • Joseph Njau King'ori vs Robert Maina Chege & 3 others
    [2002] eKLR

    Guiding principles for joinder of an intending party to a suit

  • Shimmers Plaza Limited vs. National Bank of Kenya Limited
    [2015] eKLR

    Definition of status quo as the existing state of things at the time the order is made

Jurisdiction invoked
Order 1 rule 10 of the Civil Procedure Rules (joinder of parties); Environment and Land Court jurisdiction over the suit property

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, "Ndaisi v Yusuf & 2 others", Case Analysis (2022). Environment & Land Case 813 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13607/eng@2022-10-13

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