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ELCAllowedEnvironment and Land Case Civil Suit 335 of 2017· [2022] KEELC 15451 (KLR)

Ruda v National Land Commission & 3 others; Suleman & 17 others (Interested Parties)

Environment and Land Court
9 December 2022
3,574 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Mombasa court allowed a landowner to add a surveyor firm as a defendant to explain how his registered land ended up in someone else's name.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (L.L Naikuni, J) determined a Notice of Motion dated April 26, 2022 by the plaintiff, Harji Govind Ruda, seeking leave to amend his plaint to join Edward Kirugu Land Surveyors as the 6th Defendant. The plaintiff, who claims ownership of land registered as MN/V/2618 (formerly MN/VI/3790), alleged that the surveyor firm cancelled the survey plan of his property while a court order of June 28, 2010 restraining registration to any other person was in force, and that the firm's evidence was necessary to explain how his land came to be registered to a third party. The 5th Defendant opposed, arguing the application was brought in bad faith, that the plaintiff had bought land in Section VI and could not claim land in Section V, that the Director of Survey rather than a private firm should have been joined, and that the intended 6th Defendant might collude with the plaintiff. Framing two issues - merit and costs - the court applied Order 1 Rules 3 and 10(2) of the Civil Procedure Rules and the Mercy Waithira Njeru test of necessity, holding that the surveyor's presence would enable it to effectually and completely adjudicate on the ownership question. The collusion objection was dismissed as unproven under Section 107 of the Evidence Act. The application was allowed with 21 days leave to amend the plaint, consequential filing timelines were set, the matter was directed to hearing within 180 days, and costs of the application were made costs in the cause.

Key legal issues

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01

Whether the surveyor firm (intended 6th Defendant) is a necessary party to the suit

Holding

Yes; the application for joinder was meritorious because the surveyor carried out the survey and cancellation of the suit property and its presence would enable the court to effectually and completely adjudicate on how the plaintiff's land came to be registered to a third party despite a court order.

Reasoning

The court applied Order 1 Rule 3 and Order 1 Rule 10(2) of the Civil Procedure Rules and the Mercy Waithira Njeru test of necessity. It found it paramount to understand how land registered to the plaintiff came to be registered to a third party despite a 2010 court order, and that the intended 6th Defendant, having allegedly done the survey and cancellation, was best placed to explain this. The collusion objection failed for want of proof under Section 107 of the Evidence Act.

p. 6
02

Whether the 5th Defendant's allegation of possible collusion between the plaintiff and the intended 6th Defendant could defeat joinder

Holding

No; the allegation was unsupported and treated as unsubstantiated hearsay.

Reasoning

The 5th Defendant asserted there were chances the intended 6th Defendant might collude with the plaintiff but tendered no evidence. Invoking Section 107 of the Evidence Act, the court held that he who alleges must prove, and since no proof was tendered, the allegation was baseless, unfounded and unsubstantiated hearsay and could not stand in the way of joinder.

p. 6
03

Costs of the application

Holding

Costs in the cause, since the main suit is yet to be heard and determined.

Reasoning

The court noted that costs are discretionary and that under Section 27(1) costs follow the event, meaning the outcome of proceedings. Although the plaintiff succeeded on the application, the main suit remained undetermined, so the court exercised its discretion to make costs of the application costs in the cause rather than awarding them outright to the plaintiff.

p. 6

Legal principles established

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  • The principal consideration for joinder is whether the party's presence is necessary to enable the court effectually and completely adjudicate on the issues
  • Allegations of collusion must be proved by the party alleging them under Section 107 of the Evidence Act
  • Costs follow the event but are discretionary; where the main suit is undetermined, costs of interlocutory applications may be in the cause

Court orders

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  1. 1.Notice of Motion dated April 26, 2022 allowed
  2. 2.Plaintiff granted twenty one (21) days leave to amend and serve his Plaint by joining Messrs. Edward Kirugu Land Surveyors as the 6th Defendant
  3. 3.Joined 6th Defendant granted 14 days leave upon service to comply with Orders 6, 7 and 11 of the Civil Procedure Rules, 2010, including filing Defence and/or Counter Claim, documents, witness statements and affidavits
  4. 4.Plaintiff granted seven (7) days leave upon service to file Reply to Defence and/or Counter claim, further Affidavits and documents if need be
  5. 5.Matter to be fixed for hearing within 180 days, i.e. May 16, 2023, with a mention on March 1, 2023 for Pre-Trial Conference under Order 11
  6. 6.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 63
  • Civil Procedure Rules, 2010Order 8 Rule 3
  • Civil Procedure Rules, 2010Order 1 Rule 3
  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
  • Civil Procedure Rules, 2010Orders 6, 7 and 11
  • Evidence ActSection 107
  • Civil Procedure ActSection 27(1)
  • Constitution of Kenya, 2010not specified

Cases cited (5)

  • Jacinta Wanjiru Wengwa – Versus - Sawel Theuri & 3 Others (2019)

    Relied on by plaintiff's counsel on joinder of parties under Order 1 Rules 3 and 10(2)

  • Mercy Wathira Njeru & 3 Others – Versus - Daniel Njeru Njoka Mbogo & 3 others [2019] eKLR
    [2019] eKLR

    Test for joinder: whether the party's presence is necessary to enable the court effectually and completely adjudicate; adopted by the court

  • Cyrus Wamboka Nyaga Njue – Versus - Lucy Kanyau Nyau [2019] eKLR
    [2019] eKLR

    Cited by intended 6th Defendant's counsel on necessity of a proposed party

  • Skov Estate Limited & 5 Others – Versus - Agricultural Development Corporation & Another [2015] eKLR
    [2015] eKLR

    Cited by intended 6th Defendant's counsel on joinder of necessary parties

  • Marigat Group Ranch & 3 Others – Versus - Wesley Chepkoiment & 19 others [2014] eKLR
    [2014] eKLR

    Cited by intended 6th Defendant's counsel on joinder of necessary parties

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under Sections 1A, 1B and 63 of the Civil Procedure Act, Cap 21 and Order 8 Rule 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, "Ruda v National Land Commission & 3 others; Suleman & 17 others (Interested Parties)", Case Analysis (2022). Environment and Land Case Civil Suit 335 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15451/eng@2022-12-09

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