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ELCAllowedEnvironment & Land Case 164 of 2018· [2022] KEELC 13684 (KLR)

Mbogho & another v Kazungu

Environment and Land Court
26 October 2022
NMN A Math
712 words in judgment
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The bottom line

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A Kenyan court allowed a land dispute defendant to add the County Government of Mombasa to the case because it holds key plot records.

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 Mombasa (N A Math, J) on an application dated July 5, 2022 brought by Asha Sidi Kazungu, the defendant, under Order 1 rule 10(2) and rule 14 of the Civil Procedure Rules 2010. She sought to have the County Government of Mombasa enjoined in the suit as a defendant and/or interested party. The plaintiffs, Miriam Chari Mbogho and Donald Mjomba Mbogho, had sued her for ownership of plot No 11/31 Chaani. The applicant explained that her late husband, Kazungu Dena, was allotted plot No 11/30 Chaani in the 1980s, which was around 1990 subdivided, with the newly created plot No 11/31 registered under Kilonzo Kiema, and that there was correspondence between the then Municipal Council of Mombasa and the deceased over both parcels. Following the 2010 Constitution, the Municipal Council became defunct and the County Government of Mombasa succeeded it. The applicant asserted that the County Government holds the files, records and correspondence for both plots but declined to avail them, and that joinder was necessary for the efficient administration of justice. The application was unopposed. The court invoked Order 1 rule 10(2), noting joinder is permissible at any stage where a party's presence is necessary to effectually and completely adjudicate on all questions, found the application merited, and ordered the County Government of Mombasa enjoined as defendant and/or interested party, with costs in the cause.

Key legal issues

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01

Whether the County Government of Mombasa ought to be joined to the suit

Holding

The application for joinder was allowed as unopposed and merited, the County holding relevant records of the two plots in dispute.

Reasoning

The court considered Order 1 rule 10(2), which permits joinder of any person whose presence is necessary to enable the court effectually and completely adjudicate upon and settle all questions in the suit. The applicant showed the County Government holds files, records and correspondence relating to plots 11/30 and 11/31 Chaani and has declined to avail them. The application was unopposed and the court found it had merit.

p. 2

Legal principles established

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  • A person whose presence is necessary to enable the court effectually and completely adjudicate on all questions in a suit may be added as a party at any stage of the proceedings.

Court orders

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  1. 1.That the County Government of Mombasa be enjoined herein as the defendants and/or interested party.
  2. 2.That the costs of this application be in the cause.

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 1 rule 10(2); Order 1 rule 14
Jurisdiction invoked
Order 1 rule 10(2) and rule 14 of the Civil Procedure Rules 2010

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, "Mbogho & another v Kazungu", Case Analysis (2022). Environment & Land Case 164 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13684/eng@2022-10-26

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