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ELCPartially AllowedELC No 005 of 2022· [2023] KEELC 746 (KLR)

Kheri & 5 others v Land Registrar Kwale (Miscellaneous Civil Application E005 of 2022) [2023] KEELC 746 (KLR)

Environment and Land Court
13 February 2023
2,503 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped a ruling that would have affected a company's land title because the registered owner was never heard.

What this practically means

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Executive summary

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Hathaway Limited, the registered proprietor of parcels Kwale/Galu Kinondo 41-45, moved the court by notice of motion dated September 23, 2022 seeking to arrest a ruling then pending on a notice of motion dated April 12, 2022 in which the 1st to 6th respondents, former defendants in the dismissed suit ELC No 33 of 2021, sought to have certificates of title over those parcels issued to and registered in their names. Hathaway Limited complained it was neither enjoined nor served in those proceedings despite being the registered owner, and sought joinder as an interested party and a fresh hearing. The respondents opposed, arguing Hathaway's suit had been dismissed for want of prosecution, that the matter was res judicata, and that the court was functus officio on the December 2 decree. The land registrar did not oppose. The court confined itself to the joinder question, corrected a typographical reference to order 10 rule 2 as order 1 rule 10(2) under section 100 of the Civil Procedure Act, and applied the test that a person whose presence is necessary for complete adjudication should be joined. Holding it undisputed that the suit properties were registered in Hathaway Limited's name and that the orders sought directly affected it as registered proprietor, the court joined Hathaway Limited as an interested party, arrested the intended ruling, allowed it 14 days to file a replying affidavit with a 7-day window for responses, ordered the April 12, 2022 application reheard afresh, set it for directions on March 14, 2023, and made costs in the cause.

Key legal issues

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01

Joinder of Hathaway Limited as an interested party

Holding

Hathaway Limited, the registered proprietor of the suit properties, is a necessary party because the orders sought in the April 12, 2022 motion affect its registered title

Reasoning

Order 1 rule 10(2) allows joinder of a person whose presence is necessary to enable the court effectually and completely adjudicate. The April 12, 2022 motion sought certificates of title over parcels registered in Hathaway Limited's name, directly affecting it as registered proprietor. The respondents' contention that Hathaway lost its chance when ELC No 33 of 2021 was dismissed was held to be an argument for the rehearing of the April 12, 2022 application, not this joinder application.

p. 5
02

Right to be heard / natural justice

Holding

Denying the registered owner a chance to be heard in proceedings affecting its title would breach natural justice; joinder was warranted to enable participation

Reasoning

The applicant argued, relying on article 47 of the Constitution and Maishabora Limited v Land Registrar Kilifi County, that a person whose titles are unchallenged has a right to a fair hearing before decisions affecting its property. The court did not determine the merits of the underlying title dispute, confining itself to joinder, and arrested the pending ruling so Hathaway could participate.

p. 5
03

Correction of typographical error - order 10 rule 2 vs order 1 rule 10(2)

Holding

The erroneous reference to order 10 rule 2 was treated as a mistake corrected under section 100 of the Civil Procedure Act; the applicable provision is order 1 rule 10(2)

Reasoning

The court noted order 10 rule 2 actually deals with affidavits of service upon non-appearance, and that the applicant's submissions quoted the contents of order 1 rule 10(2). Relying on its slip rule powers under section 100 of the Civil Procedure Act, the court deemed the error corrected and applied order 1 rule 10(2) on joinder.

p. 4

Legal principles established

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  • A person whose registered property is directly affected by orders sought in a suit is a necessary party who must be joined
  • A suit cannot be defeated for mis-joinder or non-joinder of parties

Court orders

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  1. 1.That the intended judgement and/or ruling by the 1st to 6th respondents application dated April 12, 2022 be arrested
  2. 2.That the applicant in the application dated September 23, 2022 be and is hereby joined as an interested party and allowed to file a replying affidavit in the matter within 14 days of the date of this order
  3. 3.That upon service the respondent shall be at liberty to respond thereto within 7 days of service
  4. 4.That the application by the 1st to 6th respondents dated April 12, 2022 be heard afresh
  5. 5.That the notice of motion application dated April 12, 2022 is set for further directions on its hearing and disposal on March 14, 2023
  6. 6.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 27(1)
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(b)
  • Constitution of KenyaArticle 47
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 100
  • Civil Procedure Rules 2010Order 10 rule 2
  • Civil Procedure Rules 2010Order 51 rule 1
  • Civil Procedure Rules 2010Order 1 rule 10(2)
  • Civil Procedure Rules 2010Order 1 rules 1 and 2

Cases cited (4)

  • JMK v MWM & another
    [2015] eKLR
  • Maishabora Limited v Land Registrar Kilifi County & 2 others
    [2020] eKLR
  • Zephir Holdings Ltd v Mimosa Plantations Ltd, Jeremiah Matagaro & Ezekiel Misango Mutisya
    (2014) eKLR
  • Meme v Republic
    [2004] 1 124
Jurisdiction invoked
Articles 27(1), 40, 50(1), 159(2)(b) of the Constitution; sections 1A, 1B, 3A and 100 of the Civil Procedure Act; order 10 rule 2 and order 51 rule 1 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, "Kheri & 5 others v Land Registrar Kwale (Miscellaneous Civil Application E005 of 2022) [2023] KEELC 746 (KLR)", Case Analysis (2023). ELC No 005 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/746/eng@2023-02-13

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