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ELCAllowedMalindi ELC Case (originating summons for adverse possession) - Notice of Motion dated 16th December 2022· [2024] KEELC 29 (KLR)

Swaleh & 4 others (Suing for Themselves and for All the other Members of Tuamukeni Self Help Group) v Ali & 12 others (Enviromental and Land Originating Summons 105 of 2016) [2024] KEELC 29 (KLR)

Environment and Land Court
15 January 2024
MOM.A. Odeny
1,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner was allowed to join an adverse possession lawsuit over his land because the outcome directly affected his property.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determined a Notice of Motion dated 16th December 2022 in which Mohamed Salim Shirazy, the intended 14th Defendant, sought to be joined as a defendant in a pending adverse possession dispute concerning plot LR No. 284/111/Mainland North at Kikambala, Kilifi County. The Applicant asserted registered ownership of five subdivisions (Nos. 3725 Original Nos 284/178 to 284/182, Section 111 Mainland North) carved from the mother title forming the suit land. Counsel for the Applicant, relying on Laxmanbhai Construction and Benson Mwangi Wangai, submitted he was a necessary and proper party and that the application was brought without delay. The 1st, 4th, 5th, 6th and 7th Respondents opposed, citing Order 1 rule 3 and Amon v Raphael Tuck & Sons for the principle that a plaintiff may choose whom to sue, and arguing that the claim for specific relief under adverse possession was not directed at the Applicant's parcels, that this was a representative suit, and that the Applicant demonstrated no joint cause of action. The court framed a single issue: whether the Applicant met the threshold for joinder. Applying Order 1 Rule 10(2), the Kingori v Chege principles, the Supreme Court's guidance in Communications Commission of Kenya v Royal Media Services (with Meme v Republic) and Zephir Holdings, the court found the Applicant a proper party given his registered interest in parcels arising from the suit land, the matter being yet to be heard. The application was allowed as prayed, with costs provided for.

Key legal issues

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01

Threshold for joinder of an intended defendant under Order 1 Rule 10(2)

Holding

The Applicant, as registered owner of subdivisions carved from the suit land, is a proper party whose presence is necessary for complete adjudication; joinder allowed.

Reasoning

The court applied Order 1 Rule 10(2) and the Kingori v Chege principles. The Applicant claimed registered ownership of five parcels originally forming part of the mother title that is the subject of the adverse possession claim. Since the suit was yet to be heard and the dispute touches his parcels, his presence would enable complete settlement of all questions, and no prejudice was shown. He qualified as a proper party and the application was allowed as prayed.

p. 4

Legal principles established

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  • A proper party is one whose presence is necessary or relevant to enable the court effectually and completely adjudicate upon all questions in the suit, and a suit cannot be defeated by mis-joinder or non-joinder
  • Guiding principles for joinder: necessary/proper party, relief flowing from the defendant, decree unenforceable without his presence, and presence needed for complete adjudication

Court orders

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  1. 1.Mohamed Salim Shirazy is joined as the 14th Defendant in the suit
  2. 2.Costs of the application provided for

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 3
  • Civil Procedure RulesOrder 1 rule 8
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 21 [1]

Cases cited (7)

  • Laxmanbhai Construction Ltd V Kihingo Village (waridi Gardens) Ltd & 2 Others
    [2012] eKLR
  • Benson Mwangi Wangai v Ibrahim Ndwiga & another
    [2005] eKLR
  • Amon v. Raphael Tuck & Sons
    [1956] 1 All ER 273 (CA)
  • Kingori vs. Chege & 3 Others
    [2002] 2 KLR 243
  • Communications Commission of Kenya and 4 Others Vs Royal Media Services Limited & 7 Others
    [2014] eKLR
  • Meme v. Republic
    [2004] 1 EA 124
  • Zephir Holdings Ltd vs. Mimosa Plantations Ltd, Jeremiah Maztagaro and Ezekiel Misango Mutisya
    (2014) eKLR
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 (inherent power to add parties)

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, "Swaleh & 4 others (Suing for Themselves and for All the other Members of Tuamukeni Self Help Group) v Ali & 12 others (Enviromental and Land Originating Summons 105 of 2016) [2024] KEELC 29 (KLR)", Case Analysis (2024). Malindi ELC Case (originating summons for adverse possession) - Notice of Motion dated 16th December 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/29/eng@2024-01-15

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