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ELCAllowedEnvironment & Land Petition E001 of 2021· [2022] KEELC 15563 (KLR)

Christopher Lekodi Kimurata v William Leshon Nkeiyua & 5 others

Environment and Land Court
19 December 2022
EWEmmanuel M Washe
2,192 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a landowner to correct his wrongly recorded name in court papers and testify in a land dispute.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kilgoris (Washe, J) determines a Notice of Motion dated July 27, 2022 filed by the 1st and 2nd Respondents in a constitutional petition concerning properties Transmara/meguara/44 and 150. The Applicants sought leave to amend pleadings to correct the 1st Applicant's name from William Leshon Nkeiyua to Wilson Lemashon Nkeiyua, and leave for the 1st Applicant to file further affidavits/documents and testify. The Petitioner opposed, arguing the amendment would introduce a stranger to the proceedings, prejudice his case, and complicate enforcement of an eviction order from Kilgoris Magistrates Court ELC No 14 of 2018 obtained in the name William Leshon Nkeiyua. The court framed two issues: the proper name of the 1st Respondent, and whether further evidence could be admitted. On the first, it held that the Title Deed and Official Search for plot 150 show the owners as Wilson Lemashon Nkeiyua and Solomon Lemaiyan Nkeiyua, and applying Order 1 Rule 10(2) of the Civil Procedure Rules, directed amendment of all pleadings. On the second, it held the 1st Applicant is a substantive party (not a mere witness) with Article 50 fair-hearing and Article 40 property rights, granted him 21 days to file affidavits/documents, preserved the Petitioner's right to recall witnesses and cross-examine, and found no prejudice. Each party was ordered to bear its own costs of the application.

Key legal issues

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01

Whether the proper name of the 1st Respondent is Wilson Lemashon Nkeiyua rather than William Leshon Nkeiyua

Holding

The proper name is Wilson Lemashon Nkeiyua, as evidenced by his ID and the Title Deed and Official Search for Transmara/meguara/150; pleadings to be amended accordingly.

Reasoning

The Petition concerns Transmara/meguara/44 and 150. The Title Deed and Certificate of Official Search show the owner of plot 150 as Wilson Lemashon Nkeiyua with Solomon Lemaiyan Nkeiyua. Order 1 Rule 10(2) permits joinder/substitution of the proper party at any stage. The correct party and name for adjudication of plot 150 is therefore Wilson Lemashon Nkeiyua.

p. 4
02

Whether the 1st Applicant may be allowed to testify and file further affidavits/documents

Holding

Yes. The 1st Applicant is a substantive party, not a mere witness, and may testify and produce documents, subject to cross-examination and the Petitioner's right of recall.

Reasoning

The 1st Applicant was named as 1st Respondent, entered appearance and filed a joint Response to the Petition. As co-owner of plot 150 he has an Article 50 right to be heard and Article 40 property interests. No prejudice arises since his position was already in the Response filed March 8, 2022, and his evidence will be open to cross-examination and addressed at submissions.

p. 5

Legal principles established

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  • Under Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 the court may at any stage add a person whose presence is necessary to effectually and completely adjudicate upon the questions in the suit
  • A substantive party to a petition has a right to a fair hearing under Article 50 before any decision affecting his ownership rights protected under Article 40

Court orders

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  1. 1.The Court finds that the proper and correct name of the 1st Applicant is Wilson Lemashon Nkeiyua and not William Leshon Nkeiyua as relates to this Petition
  2. 2.The 1st Respondent's particulars in all the pleadings in this Petition be amended to read Wilson Lemashon Nkeiyua in place of William Leshon Nkeiyua
  3. 3.The 1st Applicant granted leave of 21 days to prepare, file and serve any affidavits and/or documents he intends to rely upon at the hearing of his testimony
  4. 4.The Respondent/Petitioner shall have a right to recall any witness to clarify or answer the 1st Respondent's testimony if a new issue is raised
  5. 5.Each party to bear its own costs of the Application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 40
  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
Jurisdiction invoked
Article 27, 28, 40 and 47 of the Constitution of Kenya, 2010 (contravention of fundamental rights and freedoms); environment and land jurisdiction of the EL Court

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, "Christopher Lekodi Kimurata v William Leshon Nkeiyua & 5 others", Case Analysis (2022). Environment & Land Petition E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15563/eng@2022-12-19

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