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ELCPartially AllowedEnvironment & Land Case 85 of 2014 & 160 of 2012 (Consolidated)· [2023] KEELC 18918 (KLR)
Loise Wambui Kahenya v Dorothy Nyokabi Kimani
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·~2 min to read original · ~4 min briefThe bottom line
#A Kenyan land court allowed a plaintiff to add the actual occupier of disputed land as a defendant, even though the case was already awaiting judgment.
What this practically means
#Executive summary
#This is an interlocutory ruling by A O Ombwayo, J of the Environment and Land Court at Nakuru in consolidated suits ELC No. 85 of 2014 and ELC No. 160 of 2012, delivered virtually on 11 July 2023. The plaintiff, Loise Wambui Kahenya, applied for leave to join Sybella Wanjiku Gitiha as a defendant in ELC No. 85 of 2014, to file a further amended plaint, to effect service by registered post, and to adopt the caution application over Title No. Nakuru/Bahati/329 as evidence. The plaintiff explained that during the hearing of Sybella's evidence she discovered Sybella, not the defendant, was in occupation of parcel Nakuru/Bahati Settlement Scheme/217, and she wished to seek eviction against her. The defendant opposed, arguing the application would delay a matter pending judgment and was made in bad faith, the plaintiff having long known of Sybella's occupation. The court found Sybella a necessary party since the eviction orders would ultimately affect her, granted leave to join her as 2nd defendant, and directed filing of the amended plaint within 5 days, a defence within 7 days, and re-opening of the hearing for the 2nd defendant's case. No costs order was made. The application was allowed in its principal prayer.
Key legal issues
#01
Joinder of a necessary party after close of plaintiff's evidence
Holding
Leave to join the occupier of the suit property as 2nd defendant granted despite the matter pending judgment
Reasoning
The court considered the application, the defendant's opposition, and the proceedings of 23 March 2023. It found the proposed party was in occupation of parcel Nakuru/Bahati Settlement Scheme/217 and that the eviction orders sought would ultimately affect her, making her joinder necessary for conclusive determination. The matter was to be re-opened for her case.
p. 2
Legal principles established
#- A person in occupation of the suit property whose rights will be affected by the orders sought is a necessary party to enable conclusive determination of the dispute
Court orders
#- 1.Leave granted to the plaintiff to enjoin Sybella Wanjiku Gitiha as the 2nd defendant
- 2.Amended plaint to be filed and served within 5 days
- 3.2nd defendant to file and serve defence within 7 days
- 4.2nd defendant to file a statement in respect of the allegations by the plaintiff
- 5.Matter to be re-opened for the hearing of the 2nd defendant's case
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a pending suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Loise Wambui Kahenya v Dorothy Nyokabi Kimani", Case Analysis (2023). Environment & Land Case 85 of 2014 & 160 of 2012 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18918/eng@2023-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.