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ELCPartially AllowedEnvironment & Land Case 174 of 2015· [2023] KEELC 16128 (KLR)

Kibowen v Ruto & 14 others

Environment and Land Court
15 March 2023
3,000 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 allowed ten families occupying disputed land to join an eviction case as defendants, but refused to reopen decisions already made.

What this practically means

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Executive summary

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This ruling by FM Njoroge, J of the Environment and Land Court at Nakuru determines a Notice of Motion dated 24/01/2023 by ten proposed defendants seeking joinder to a 2015 eviction suit over land parcel Lembus/Kiplombe/157, joinder of the Agricultural Finance Corporation as third party, a site visit to the locus in quo, and leave to amend pleadings. The applicants claimed the suit land was their ancestral land where they had built homes and raised families. The plaintiff opposed, arguing non-disclosure of a prior dismissed joinder application and appeal, res judicata regarding AFC, and that the applicants should at most be witnesses, alleging their houses were built during the suit to defeat his claim. The court applied Order 1 Rule 10(2) and Civicon Limited v Kivuwatt Limited, holding that persons admitting occupation of the suit land are necessary parties for final disposal of occupation and eviction issues, and joined the 6th to 15th proposed defendants as substantive defendants. However, the AFC joinder prayer was refused as res judicata, the court having ruled on 14/07/2016 that AFC was not a necessary party, and the site visit was declined as unnecessary. The court directed reciprocal amendment of the plaint and defence within fourteen days, required the new defendants to file witness statements and documents, and ordered that default in compliance would automatically vacate the joinder. The application succeeded partially.

Key legal issues

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01

Joinder of the 6th to 15th proposed defendants as defendants

Holding

Joinder allowed; the applicants, having admitted occupation of the suit land, are necessary parties for final disposal of the issues of occupation and eviction

Reasoning

Applying Order 1 Rule 10(2) and Civicon, the court held that persons in occupation of the suit land ought to be joined so the court can effectually and completely adjudicate on occupation and eviction. Their joinder application was distinguishable from the earlier dismissed application by Tengekyon and Chepkeitany, so res judicata did not apply to them.

p. 6
02

Joinder of Agricultural Finance Corporation as third party

Holding

Refused as res judicata; the court had on 14/07/2016 dismissed an application seeking AFC's joinder and held AFC not a necessary party

Reasoning

Section 7 of the Civil Procedure Act and the IEBC v Maina Kiai exposition of res judicata bar re-litigation of the AFC joinder issue already heard and finally decided. The prior ruling bound the proposed defendants, who claim under the same title as the earlier applicants.

p. 6
03

Site visit to the suit property

Holding

Refused as unnecessary since parties will have sufficient opportunity to call evidence of occupation

Reasoning

The court found case-management reasons sufficient: occupation evidence can be adduced at trial, and the plaintiff's claim that the dwellings were erected during the pendency of the suit to defeat his claim remains untested evidence for trial.

p. 6

Legal principles established

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  • A party seeking joinder must demonstrate sufficient interest in the suit, and the interest need not be one that must succeed at trial
  • Res judicata under Section 7 of the Civil Procedure Act bars re-litigation of an issue already heard and finally decided between parties litigating under the same title

Court orders

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  1. 1.The 6th to 15th proposed defendants joined to the suit as substantive defendants
  2. 2.Prayer for joinder of Agricultural Finance Corporation as third party refused as res judicata
  3. 3.Prayer for a site visit to the locus in quo refused
  4. 4.Plaintiff to amend the plaint to include the applicants as 6th to 15th defendants and serve the amended plaint on the firm of Ham & Hamsley Advocates within fourteen (14) days
  5. 5.Defendants collectively to amend the existing defence of the 1st–5th defendants to include the 6th to 15th defendants within fourteen (14) days upon service of the amended plaint
  6. 6.6th to 15th defendants to file and serve, within fourteen days, a single indexed and paginated bundle of list of witnesses, witness statements, list of documents and copies of documents
  7. 7.In default of compliance, the order of joinder to stand automatically vacated fourteen days from service of the amended plaint and the suit set down for hearing with the original 5 defendants
  8. 8.Suit to be mentioned on 18th April 2023 for further directions

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 3 Rule 8
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (8)

  • JMK v MWM & another
    [2015] eKLR

    Court's jurisdiction to grant joinder orders under Order 1 Rule 10(2)

  • Central Kenya Ltd v Trust Bank & 4 Others
    CA No. 222 of 1998

    Jurisdiction and absence of irreparable damage from joinder

  • Francis Karioki Muruatetu & another v Republic & Others
    SC Petition No 16 of 2015 [2016] eKLR

    Applicants' identifiable stake in the suit property

  • Civicon Limited v Kivuwatt Limited & 2 others
    [2015] eKLR

    Principles for joinder under Order 1 Rule 10(2): sufficient interest, necessity, discretion exercised judicially

  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 others
    (2017) eKLR

    Purpose and foundations of the doctrine of res judicata

  • Joseph Njau Kingori v Robert Maina Chege & 3 others
    [2002] eKLR

    Persons with useful information should be listed as witnesses rather than joined

  • Marigat Group Ranch & 3 Others v Wesley Chepkoiment & 19 Others
    [2014] eKLR

    Same proposition - proposed parties as witnesses, not defendants

  • Fedrick Ngari Muchira, Howard Kipkoech Korir & 98 Others v Pyrethrum Board of Kenya
    [2013] eKLR

    Same proposition - proposed parties as witnesses, not defendants

Jurisdiction invoked
Order 1 Rule 10(2), Order 3 Rule 8 and Order 51 Rule 1 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

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, "Kibowen v Ruto & 14 others", Case Analysis (2023). Environment & Land Case 174 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16128/eng@2023-03-15

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