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ELCAllowedNot stated in judgment· [2023] KEELC 121 (KLR)

Chesire v Kipturgo; Kitilit & another (Proposed Defendant) (Environment & Land Case 36 of 2020) [2023] KEELC 121 (KLR)

Environment and Land Court
20 January 2023
MNMwangi Njoroge
2,306 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed land registered in other people's names to be pulled into a boundary dispute because their presence was needed for a complete decision.

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 Nakuru (Mwangi Njoroge J) on the defendant's notice of motion dated October 19, 2022, brought under Order 1 rule 10(2) and Order 51 of the Civil Procedure Rules, seeking leave to enjoin Sokome Maria Kitilit and Douglas Cherutich Kitilit as co-defendants and 14 days for them to file responses. The defendant deposed that he was allocated parcel Nakuru/Mariashoni Settlement Scheme/2436; that after Reuben Kitilit (husband of the proposed 2nd defendant) was mistakenly buried on his own parcel, the families agreed to swap parcels 2436 and 2435 without formal transfer; that a Ministry of Lands survey revealed parcel 2435 fell short of its registered acreage, and a new boundary hived approximately 0.423 Ha from the plaintiff's land, after which the plaintiff and the proposed defendants dispossessed him. The plaintiff opposed, arguing misjoinder, distinct interests, collusion in the survey, and lack of locus standi. The court framed a single issue: whether the proposed defendants should be joined. Relying on Pravin Bowry v John Ward, Departed Asians Property Custodian Board v Jaffer Brothers, Meme v Republic and Civicon Limited v Kivuwatt Limited, the court held that because the suit property is registered in the proposed defendants' names and the parcels were allegedly swapped, their presence was necessary for effectual and complete adjudication. The application was allowed with costs in the cause; the plaintiff was directed to amend the plaint, serve it with summons within 30 days, failing which the suit would stand struck out, with a mention on March 28, 2023.

Key legal issues

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01

Whether the registered owners of the suit property should be joined as co-defendants

Holding

Yes - joinder allowed because the suit property is registered in the proposed defendants' names and they had swapped parcels with the defendant.

Reasoning

The defendant is in occupation of land registered in the names of Sokome Maria Kitilit and Douglas Cherutich Kitilit, arising from an alleged informal swap of parcels. The plaintiff's claim concerns the boundary of that land. Their presence is necessary for the court to effectually and completely adjudicate on all issues, avoid multiplicity of suits, and ensure any order made is enforceable against the registered owners.

p. 4

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 the suit may be joined as a party even without a cause of action against them.
  • Any party reasonably affected by pending litigation is a necessary and proper party and should be enjoined; the interest demonstrated need not ultimately succeed at trial.

Court orders

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  1. 1.The defendant's application dated October 19, 2022 allowing joinder of Sokome Maria Kitilit and Douglas Cherutich Kitilit as 2nd and 3rd defendants is allowed
  2. 2.Costs of the application shall be in the cause
  3. 3.The plaintiff to amend the plaint to join the two applicants as 2nd and 3rd defendants, plead against them as appropriate, and serve the amended plaint with summons within 30 days, in default of which the suit will stand struck out
  4. 4.Suit to be mentioned on March 28, 2023 to ascertain compliance and issue further directions

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10(2)
  • Civil Procedure RulesOrder 1 rule 1
  • Civil Procedure RulesOrder 51

Cases cited (6)

  • Elisheba Muthoni Mbae v Nicholas Karani Gichohi & 2 others
    [2014] eKLR
  • Crescent Distribution Services Limited v Egnite Technologies Limited & another
    [2013] eKLR
  • Pravin Bowry v John Ward & another
    [2015] eKLR
  • Departed Asians Property Custodian Board v Jaffer Brothers Limited
    (1999) I EA 55 (SCU)
  • Meme v Republic
    [2004] KLR 637
  • Civicon Limited v Kivuwatt Limited & 2 others
    [2015] eKLR
Jurisdiction invoked
Order 1 rule 10(2) and Order 51 of the Civil Procedure Rules

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, "Chesire v Kipturgo; Kitilit & another (Proposed Defendant) (Environment & Land Case 36 of 2020) [2023] KEELC 121 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/121/eng@2023-01-20

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