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ELCDismissedEnvironment & Land Case 6 of 2014· [2023] KEELC 21089 (KLR)

Joshi & 2 others v Kirui; Kirui & another (Intended Interested Party)

Environment and Land Court of Kenya
26 October 2023
MOM.C. Oundo
2,376 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 M.C. Oundo, J of the Environment and Land Court at Kericho determined a Notice of Motion dated March 3, 2023 by Joseph Kirui and Emily Cherop Kirui, the children of the Defendant and of the late Philip Kirui, seeking to be joined as Interested Parties in a long-running land suit under Order 1 Rule 10 of the Civil Procedure Rules. The suit property is Title No Kericho/Chemagel/1401, and the Plaintiffs sought execution of a decree for vacant possession or eviction. The Applicants argued that as heirs of the deceased former owner they had an identifiable stake, that non-joinder would deprive them of a hearing and expose them to eviction unheard, relying on Muruatetu, the Kenya Medical Laboratory Technicians case and Civicon Limited. The Plaintiffs opposed, contending the Applicants had no proximate claim, were mere proxies of the Defendant, and that ownership and possession had already been conclusively determined in former suits (HCC No 3154 of 1989 and HCC No 3 of 2009), the Defendant's counter-claim having been dismissed as res judicata. The court applied Order 1 Rule 10(2), the Meme v Republic criteria and Central Kenya Ltd v Trust Bank Ltd, holding that a party cannot be joined to introduce a new cause of action or alter the nature of a suit, and that joinder must be necessary for effectual and complete adjudication. Finding the issues the Applicants wished to raise already conclusively determined and the suit at the execution stage, the court dismissed the application with costs and directed that the suit be set down for main hearing.

Key legal issues

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01

Whether the Intended Interested Parties met the legal threshold for joinder under Order 1 Rule 10(2)

Holding

They did not; the matters they wished to raise had already been determined by a competent court and their joinder would add no value to a suit at the execution stage

Reasoning

The court applied Order 1 Rule 10(2) and the Meme v Republic criteria. The Applicants, children of the deceased former owner, sought to litigate ownership and possession issues already conclusively decided in former suits with no appeal. Joinder at the tail end of a suit, to re-open determined issues, does not serve complete adjudication and would only proliferate litigation.

p. 5
02

Whether the Intended Interested Parties demonstrated prejudice from non-joinder

Holding

No legal prejudice was demonstrated; their claim of being heirs did not establish a proximate stake warranting joinder

Reasoning

The Applicants argued non-joinder would deprive them of a day in court and expose them to eviction unheard. The court found the ownership and possession issues they relied on were res judicata, having been determined in HCC No 3154 of 1989 and HCC No 3 of 2009, and the Defendant's counter-claim had been dismissed as res judicata. Their presence was not necessary for complete adjudication.

p. 5

Legal principles established

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  • A party cannot be added to a suit to introduce a new cause of action or alter the nature of the suit; joinder is only for parties necessary to the effectual and complete adjudication of the questions involved
  • The paramount consideration for joinder is whether the party is necessary for the effectual and complete adjudication of all questions in the suit

Court orders

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  1. 1.The Notice of Motion dated March 3, 2023 seeking joinder of the Intended Interested Parties is dismissed with costs
  2. 2.The suit will now be set down for the main hearing

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10 (and Order 1 Rule 10(2))
  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure ActSection 27(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2

Cases cited (6)

  • Francis Karioki Muruatetu & Another v Republic & 5 Others
    [2016] eKLR

    Definition of an interested party and the criteria of personal interest/stake in proceedings

  • Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others
    [2017] eKLR

    Legal standing of heirs as conferring an interest in land owned by their deceased parent

  • Civicon Limited vs Kivuwatt Limited and 2 Others
    [2015] eKLR

    Prejudice suffered by a party where non-joinder leaves them bound by a judgment rendered in their absence

  • Christine Andree Joshi & 2 others vs. Sally Chebwogen Kirui
    [2019] eKLR

    Background of the matter; counter-claim dismissed as res judicata

  • Meme v Republic
    [2004] KLR 637

    Circumstances warranting grant of leave to join a party to proceedings

  • Central Kenya Ltd v Trust Bank Ltd & 5 others
    [2000] eKLR

    Paramount consideration for joinder is necessity for effectual and complete adjudication

Jurisdiction invoked
Order 1 Rule 10 of the Civil Procedure Rules, Sections 3 and 3A of the Civil Procedure Act

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, "Joshi & 2 others v Kirui; Kirui & another (Intended Interested Party)", Case Analysis (2023). Environment & Land Case 6 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21089/eng@2023-10-26

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