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ELCAllowedEnvironment & Land Case 18 of 2018· [2023] KEELC 17548 (KLR)

Njira v Gakuyo Real Estate Limited

Environment and Land Court
17 May 2023
1,504 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Embu (A Kaniaru, J) determined a notice of motion dated 4/4/2021 by the plaintiff, Nelson Runji Njira, seeking leave under Order 1 Rule 10 of the Civil Procedure Rules to enjoin David Kariuki Ngari as a co-defendant in a land sale dispute against Gakuyo Real Estate Limited. The plaintiff relied on two sale agreements: the first naming the defendant company as purchaser, and an amended sale agreement dated 17/9/2019 naming the intended second defendant as purchaser, granting him immediate possession, with the purchase money payable into a joint account in the names of the plaintiff and the intended second defendant. The defendant, through its CEO Dickson Michind Nyokabi, opposed, contending the amended agreement was a mere addendum, that the intended second defendant was its agent, and that the amended plaint was filed three years after suit without leave, warranting striking out. The court held the change of purchaser was fundamental, not minor; joinder was necessary for the proper administration of justice and potential joint liability. Emphasising the plaintiff's dominus litis freedom to choose whom to sue, the court found no amended plaint had actually been filed (the document was only an annexure to the application) and that pleadings were not closed since no defence had been filed. The application was allowed with costs in the cause.

Key legal issues

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01

Whether the intended second defendant is a necessary party

Holding

Yes; the change of purchaser in the amended sale agreement is fundamental, and the intended second defendant was granted immediate possession and named in the joint account for purchase money.

Reasoning

The court noted two sale agreements: the first naming the respondent as purchaser, the second naming the intended second defendant. The change of purchaser was held to be fundamental, not minor. The second agreement granted the intended second defendant immediate possession, and the joint deposit account bore his name with the applicant, making his presence necessary for effective determination.

p. 2
02

Whether the amended plaint was filed out of time without leave, justifying striking out

Holding

No; the purported amended plaint was only an attachment to the joinder application and had not been filed.

Reasoning

The respondent argued the amended plaint was filed three years after suit without leave. The court found no amended plaint on record; the document was an annexure to the joinder application, to be filed only if the application succeeded. The striking-out submission therefore failed.

p. 3
03

Whether pleadings were closed

Holding

No; the respondent had not filed a defence, so pleadings could not be treated as closed.

Reasoning

The court reviewed the record and found the respondent had only filed responses to interlocutory applications and no defence. Treating pleadings as closed would bar the respondent from filing a defence, depriving both sides of a hearing. The joinder application was therefore allowed on its merits.

Legal principles established

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  • The plaintiff as dominus litis has the freedom to choose whom to sue, and joinder is desirable where it is not clear who should bear the relief.
  • Joinder is necessary where a party's presence is required for the proper administration of justice or where parties may be held jointly liable.

Court orders

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  1. 1.Leave granted to the plaintiff to enjoin David Kariuki Ngari as a co-defendant in the suit
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure RulesOrder 8 Rules 1(1), 2(a) and (b)
  • Civil Procedure RulesOrder 7 Rule 7(1)

Cases cited (7)

  • Eastern Bakery Vs Castelino
    [1958] 461

    amendments to be freely granted provided no prejudice is occasioned

  • Tiidesley Vs Harper
    [1878] 10 Ch.D

    amendments freely allowed absent prejudice

  • Budding v Murdoch
    [1875] 1 Ch.D p. 42

    amendments freely allowed absent prejudice

  • Simoniah v Johar
    [1962] E 336

    amendments freely allowed absent prejudice

  • Ochieng and others v First National Bank of Chicago
    Civil Appeal No. 147 of 1991

    amendments freely allowed absent prejudice

  • Chairman, Secretary and Treasurer, School Management Committee of Sir Ali Bin Salim Primary School & Another v Francis Bahati Diwani & 2 others
    [2014] eKLR

    striking out plaint filed out of time without leave

  • Harrison C. Kariuki v Blue Shield Insurance Co. Ltd
    [2006] eKLR

    striking out plaint filed out of time without leave

Jurisdiction invoked
Environment and Land Court jurisdiction; application under Order 1 Rule 10 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, "Njira v Gakuyo Real Estate Limited", Case Analysis (2023). Environment & Land Case 18 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17548/eng@2023-05-17

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