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ELCDismissedNot stated in the judgment· [2024] KEELC 55 (KLR)

Ndirangu v AA Bayusuf & Company & Co Ltd & 4 others (Environment & Land Case E057 of 2022) [2024] KEELC 55 (KLR)

Environment and Land Court
18 January 2024
ADA.E. Dena
1,852 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court ruled that you cannot remove government defendants from a land case just by claiming the National Land Commission should have been sued instead.

What this practically means

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Executive summary

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The 3rd, 4th and 5th Defendants moved the court by Notice of Motion dated 20 September 2023 seeking to be struck out of the suit, arguing that the Plaintiff holds only a letter of allotment over unregistered land, that the National Land Commission (NLC) is the proper body to sue over letters of allotment, that the Gazette Notice was published by the 2nd Defendant's officers, and that no cause of action was disclosed against them. The Plaintiff opposed through a replying affidavit by counsel Grace A. Okumu, contending that all parties were properly before the court, that the Attorney General represents the whole Republic including Kwale County, and that misjoinder cannot defeat a suit under Order 1 Rule 9. The court framed one issue: whether the application had merit. Holding that the application was in substance about removal of parties rather than striking out pleadings, A.E. Dena J found that the Plaintiff's pleadings disclosed claims against each defendant: the 3rd Defendant (Land Registrar, Kwale) is the one who ultimately registers titles, and a mandatory injunction is sought against the 4th Defendant. The Letter of Allotment of 17 July 1995, signed on behalf of the Commissioner of Lands on the Department of Lands letterhead, confirmed the Attorney General was properly sued. Any complaint about the NLC's absence was one of non-joinder, curable under Order 1 Rule 10(2), not a ground for striking out defendants. Guided by Zephir Holdings, the court held the NLC a necessary party. The application dated 20/9/2023 was dismissed with costs in the cause, and the NLC was added to the suit.

Key legal issues

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01

Whether the 3rd, 4th and 5th Defendants were properly joined as defendants

Holding

They were properly joined; the Plaintiff's pleadings allege relief against each of them, including registration of titles and a mandatory injunction

Reasoning

Order 1 Rule 3 permits joinder of all persons against whom any right to relief arising out of the same act or transactions is alleged. The Letter of Allotment, the critical document, was signed on behalf of the Commissioner of Lands on the letterhead of the Department of Lands, institutions all under the Government of Kenya, represented by the Attorney General. Liability is a matter for trial.

p. 3
02

Whether failure to sue the National Land Commission justified striking out the defendants

Holding

No - that is a complaint of non-joinder, cured by addition of the NLC rather than removal of existing defendants

Reasoning

The court held that the claim that the NLC is the body mandated to issue letters of allotment amounted to saying the NLC is a necessary party. That is an issue of non-joinder, whose cure lies in Order 1 Rule 10(2), either on application by the plaintiff or suo motu by the court. The court then exercised that power and joined the NLC.

p. 4
03

Whether the National Land Commission should be joined

Holding

Yes - it is a necessary party whose presence enables the court to effectually and completely adjudicate on all questions

Reasoning

Applying Zephir Holdings Ltd v. Mimosa Plantations Ltd, the court found that the test is whether the party's presence enables the court to effectually and completely adjudicate upon and settle all questions in the suit. The NLC is a critical party whose presence will enable all parties to be heard once and for all.

p. 4

Legal principles established

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  • Misjoinder or non-joinder of parties cannot be a ground to defeat a suit; the cure for non-joinder is addition of the party under Order 1 Rule 10(2)
  • The Attorney General represents the Government in all civil proceedings, including ministries and departments
  • Where a plaintiff is in doubt as to the persons from whom redress is to be obtained, he may join two or more defendants under Order 1 Rule 7

Court orders

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  1. 1.The application dated 20/9/2023 is dismissed
  2. 2.Costs shall be in the cause
  3. 3.The National Land Commission be and is hereby added to this suit

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 1 Rule 10(2)
  • Civil Procedure Rules 2010Order 2 Rule 15(1)(a)
  • Civil Procedure Rules 2010Order 1 Rule 3
  • Civil Procedure Rules 2010Order 1 Rule 9
  • Civil Procedure Rules 2010Order 1 Rule 7
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Constitution of Kenya 2010Article 159(2)(d)

Cases cited (6)

  • D.T. Dobie & Co. (K) Ltd Vs. Muchina
    (1982) eKLR
  • Crescent Construction Ltd vs. Kenya Commercial Bank Limited
    (2019) eKLR
  • Kingori vs. Chege & 3 Others
    (2002) 2 eKLR
  • Jeremiah Matagaro and Ezekiel Misango Mutisya
    [2014] eKLR
  • Departed Asians Property Custodian Board versus Jaffer Brothers Ltd
    [1999] 1 EA 55
  • Zephir Holdings Ltd vs. Mimosa Plantations Ltd & 2 Others
    (2014) eKLR
Jurisdiction invoked
Orders 1 Rule 10(2) and 2 Rule 15(1)(a) of the Civil Procedure Rules 2010 and Sections 1A 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, "Ndirangu v AA Bayusuf & Company & Co Ltd & 4 others (Environment & Land Case E057 of 2022) [2024] KEELC 55 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/55/eng@2024-01-18

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