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ELCDismissedELC No 71 of 2021· [2023] KEELC 726 (KLR)

Miserez v Hazina Investments Co Ltd & another; Mayugo (Interested Party) (Environment & Land Case 71 of 2021) [2023] KEELC 726 (KLR)

Environment and Land Court
1 February 2023
ADA.E. Dena
2,771 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to join a man claiming ancestral ownership to an ongoing property case because he produced no evidence of his claim.

What this practically means

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Executive summary

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The Interested Party/Applicant, Said Hamisi Said, moved the court by chamber summons dated September 29, 2022 seeking leave to be enjoined as an interested party in this suit (ELC No 71 of 2021) and for consolidation of that suit with ELC No E30 of 2022, both said to concern fraud over land parcel Kwale/Galu Kinondo/783. He asserted the land originally belonged to his late grandfather, Said Suleiman Juma, and was fraudulently transferred to the plaintiff and later sold to the 1st Defendant, which claims to be a bonafide purchaser for value. The 1st Defendant opposed, arguing the causes of action were separate and distinct, that it was a stranger to the applicant, and that consolidation was premature since no summons in ELC E30 of 2022 had been served. The court, A.E. Dena J, applied the consolidation guidelines in Municipal Council of Mombasa v Municipal Council of Mombasa and found them unmet: the applicant annexed no plaint from ELC E30 of 2022, produced no green cards or mutation to substantiate the alleged ancestral ownership, and the two suits did not arise from the same transaction. On joinder, applying Order 1 Rule 10(2) and Werrot & Co Ltd v Andrew Douglas Gregory, the applicant failed to show a right to relief or that an effective decree could not be passed in his absence, nor any prejudice. Noting the suit had been pending for 12 years, the court dismissed the application with no orders as to costs.

Key legal issues

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01

Whether the threshold for consolidation of the two suits was met

Holding

The application for consolidation failed because no plaint from ELC E30 of 2022 was annexed, no common transaction was demonstrated, and the fraud allegations were unsubstantiated.

Reasoning

The court applied the Maraga J guidelines in Municipal Council of Mombasa. It found that the supporting affidavit annexed only summons to enter appearance and no plaint, so similarity of relief could not be assessed. No evidence (green cards or mutation) proved the applicant's claimed ancestral ownership. The suits concern different transactions, and the 12-year pendency of the present suit weighed against entertaining further interlocutory applications.

p. 5
02

Whether the applicant qualified for joinder as a necessary/interested party

Holding

The applicant failed both tests for a necessary party: no right to relief shown and an effective decree could be passed without him.

Reasoning

Applying Werrot & Co Ltd v Andrew Douglas Gregory and Order 1 Rule 10(2), the court held the applicant produced no evidence of occupation, use or ownership of the suit property, and alleged no prejudice. The court could pass an effective decree without him, so joinder was unnecessary and the claim of ancestral ownership remained a mere allegation.

p. 5

Legal principles established

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  • Consolidation is ordered where suits pending in the same court raise common questions of law or fact, or arise out of the same transaction, or where it is otherwise desirable
  • The tests for a necessary party are a right to relief against that party and impossibility of passing an effective decree in their absence

Court orders

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  1. 1.The chamber summons dated September 29, 2022 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 9 Rule 13

Cases cited (3)

  • Getrude Awinja (suing as the personal representative of the estate of Daniel Ochiel) v County Government of Busia & Another
    [2022] eKLR
  • Municipal Council of Mombasa v Municipal Council Of Mombasa
    [2004] eKLR
  • Werrot & Co Ltd & 3 Others v Andrew Douglas Gregory & 2 Others
    [1998] eKLR
Jurisdiction invoked
Inherent jurisdiction under sections 1A, 1B and 3A of the Civil Procedure Act and Order 1 Rule 10(2) 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, "Miserez v Hazina Investments Co Ltd & another; Mayugo (Interested Party) (Environment & Land Case 71 of 2021) [2023] KEELC 726 (KLR)", Case Analysis (2023). ELC No 71 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/726/eng@2023-02-01

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