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ELCPartially AllowedEnvironment & Land Case E007 of 2021· [2022] KEELC 15353 (KLR)

Kinundu & 3 others v Njoroge & another

Environment and Land Court
15 December 2022
YAY. M. Angima
2,607 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This interlocutory ruling by Angima J of the Environment and Land Court at Nyahururu dealt with a notice of motion dated April 13, 2021 filed by the 1st defendant, Mary Ruguru Njoroge, alongside her defence and counterclaim. She sought temporary injunctions against the plaintiffs, joinder of four registered proprietors of sub-divisions of Parcel Nyandarua/Nandarasi/1148 (which she claimed formed part of her late husband's estate), and transfer of the suit to the Senior Principal Magistrate's Court at Engineer on grounds of territorial jurisdiction and pecuniary value. The court declined to consider the injunction prayers at that stage because three persons were sought to be joined, deferring them. On joinder, the court found from annexed green cards that Paul Mungai Guru, John Muturi Kimani and Peter Mwangi Karanja were registered proprietors of parcels the 1st defendant sought to cancel, and held their joinder necessary under Order 1 rule 10 for complete adjudication. On transfer, the court applied sections 11 and 12 of the Civil Procedure Act - suits to be filed in the lowest grade competent court and where immovable property is situate - and, noting the undisputed value of about Kshs 5 million and the proximity of the properties and parties to Engineer, ordered transfer to the SPM's Court at Engineer. The status quo order of November 8, 2021 was extended pending determination of the remaining injunction prayers. No costs order was made in the ruling.

Key legal issues

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01

Joinder of registered proprietors of the sub-divided parcels to the counterclaim

Holding

Joinder allowed; the trio are registered proprietors of parcels the 1st defendant seeks to cancel, making their joinder necessary

Reasoning

The 1st defendant sought to challenge the registrations of Paul Mungai Guru, John Muturi Kimani and Peter Mwangi Karanja over parcels 2205, 2206 and 2209. Green cards annexed to her affidavit confirmed their registration. Under Order 1 rule 10 their presence is necessary for effective and complete adjudication of all issues; joinder was allowed with directions for service.

02

Transfer of the suit to the Senior Principal Magistrate's Court at Engineer

Holding

Transfer ordered; the suit ought to have been filed at Engineer given the situs and value of the properties

Reasoning

Section 11 of the Civil Procedure Act requires suits to be filed in the lowest grade court competent to try them, and section 12 requires suits relating to immovable property to be filed where the property is situate. The properties, valued at about Kshs 5 million, lie about 15 km from Engineer and the parties reside there; the plaintiffs did not dispute these averments, so transfer was warranted.

p. 6

Legal principles established

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  • A suit should be instituted in the court of the lowest grade competent to try it
  • Suits concerning immovable property must be instituted where the property is situate
  • Joinder is proper where necessary to enable the court to effectively and completely adjudicate on all issues

Court orders

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  1. 1.Joinder of Paul Mungai Guru, John Muturi Kimani and Peter Mwangi Karanja as the 3rd, 5th and 6th defendants respectively to the 1st defendant's counterclaim
  2. 2.The 1st defendant to serve the trio with summons to enter appearance, the defence and counterclaim and the notice of motion dated April 13, 2021
  3. 3.Transfer of the suit to the SPM's Court at Engineer for trial and disposal
  4. 4.Remaining prayers for injunction to be canvassed before the trial court at Engineer Law Courts upon service of the joined parties
  5. 5.Status quo order first made on November 8, 2021 extended until hearing and disposal of the remainder of the prayers in the notice of motion dated April 13, 2021

Authorities

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Legislation

  • Land Registration Actsection 2
  • Civil Procedure Act (Cap. 21)sections 1A, 1B, 3, 3A, 11, 12, 18 and 63(e)
  • Civil Procedure Rules, 2010Order 1 rule 10; Order 40 rule 1; Order 51 rules 1 & 3
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - implied; application under sections 1A, 1B, 3, 3A, 18 and 63(e) of the Civil Procedure Act and Order 1 rule 10, Order 40 rule 1, Order 51 rules 1 & 3 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, "Kinundu & 3 others v Njoroge & another", Case Analysis (2022). Environment & Land Case E007 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15353/eng@2022-12-15

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