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ELCDismissedNot stated in the extract (chamber summons application dated 22nd May 2023)· [2024] KEELC 3992 (KLR)

Mueke & another v Co-operative Bank of Kenya Limited & another; Mbuta & another (Intended Plaintiffs) (Environment & Land Case 370 of 2011) [2024] KEELC 3992 (KLR)

Environment and Land Court
29 April 2024
ANA. Nyukuri
2,042 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that people who bought or received land mid-suit need not be joined as parties if their dispute is with the plaintiff, not the defendant.

What this practically means

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Executive summary

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The plaintiffs filed a chamber summons dated 22nd May 2023 seeking joinder of Ezra David Ndolo and Purity Mbula Malika as plaintiffs, leave to further amend the plaint, and leave to file further documents and statements. The 2nd plaintiff, Joseph Muendo Malika, deponed that he purchased the suit property at a public auction on 13th July 2009 on behalf of the intended plaintiffs (his brother-in-law and sister) and transferred it to them on 16th August 2016; his current advocates advised that they should have been joined. The 1st defendant opposed, arguing the application was a delay tactic brought over eleven years after suit, that the intended plaintiffs were strangers to the 2009 contract, that no power of attorney evidenced any agency, and that joinder would introduce a new cause of action. The court framed one issue: whether the intended plaintiffs were necessary parties and whether the plaint should be amended to include them. Applying Order 1 rule 10(2) and Order 8 rule 5 of the Civil Procedure Rules and the principles in King'ori v Chege and Departed Asians Property Custodian Board v Jaffer Brothers Ltd, the court held the real issue between the parties was the alleged 2009 misrepresentation; the transfer and alleged agency were matters strictly between the plaintiffs and the intended plaintiffs, unsupported by the plaintiffs' own evidence. The applicants had also not explained the eight-year delay despite an earlier amendment application decided on 9th November 2022. The application was dismissed with costs.

Key legal issues

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01

Whether the intended plaintiffs are necessary parties whose presence is required for effectual and complete adjudication

Holding

They are not necessary parties; the dispute over the alleged purchase on their behalf and the 2016 transfer is between the plaintiffs and the intended plaintiffs alone and does not concern the defendant

Reasoning

The court applied Order 1 rule 10(2) and the King'ori v Chege test. The core issue in the suit is alleged misrepresentation by the defendants in the 2009 auction sale. The transfer to the intended plaintiffs occurred while the suit was pending and no evidence, including the plaintiffs' own evidence, supported the claim that the property was purchased on their behalf. The delay of eight years without explanation further weighed against joinder.

p. 4

Legal principles established

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  • For a party to be joined, they must be necessary parties in that the determination of the issues would affect them
  • Joining every subsequent registered proprietor as a party would render suits indeterminable

Court orders

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  1. 1.The application dated 22nd May 2023 is dismissed with costs
  2. 2.Orders accordingly

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 1 Rules 1, 9, 10(2), 14
  • Civil Procedure Rules, 2010Order 8 Rules 3, 5

Cases cited (7)

  • King’ori v Chege & 3 others
    [2002] 2 KLR 243
  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd
    [1999] 1 EA 55
  • Civicon Ltd v Kivuwatt Ltd & 2 others
    [2015] eKLR
  • Garley Enterprises Ltd v Agricultural Finance Corporation & Another
    [2018] eKLR
  • Jeremiah Nyangwara Matoka v Independent Electoral and Boundaries Commission & 2 others
  • Meme v Republic
    [2004] 11 124
  • Central Kenya Limited v Trust Bank Limited
    [2002] 2 EA
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 1 Rules 1, 9, 10 and 14 and Order 8 Rules 3 and 5 of the Civil Procedure Rules, 2010

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, "Mueke & another v Co-operative Bank of Kenya Limited & another; Mbuta & another (Intended Plaintiffs) (Environment & Land Case 370 of 2011) [2024] KEELC 3992 (KLR)", Case Analysis (2024). Not stated in the extract (chamber summons application dated 22nd May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3992/eng@2024-04-29

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