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ELCPartially AllowedChamber Summons Application dated 04/04/2024 in the Plaintiff's Suit dated 16/06/2011· [2024] KEELC 4206 (KLR)

Pentecostal Evangelistic Fellowship of Africa (Suing through its Registered Trustees) v Muriri & 12 others; Wekesa & 45 others (Intended Interested Party) (Environment & Land Case 1454 of 2007) [2024] KEELC 4206 (KLR)

Environment and Land Court
13 May 2024
3,344 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Nairobi land court allowed only one of 46 people to join a church land dispute, because he alone could prove how he got his plot.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Mogeni J) determines a Chamber Summons application dated 04/04/2024 by Stephen Mbugua Muthui and 45 others seeking joinder as interested parties in a land suit commenced on 16/06/2011, and a preliminary objection by the Plaintiff church contending the application was statute-barred under Section 7 of the Limitation of Actions Act. The court first applied the Mukisa Biscuits test, confirming a preliminary objection must be a pure point of law. On limitation, it found the 40th Intended Interested Party's cause of action accrued on 29/05/2012 when the City Council of Nairobi allotted him Plot Nairobi/Block 190/5 (Formerly Plot No. A-366) under the Matopeni Kayole Scheme, so the 12-year period expired around 29/05/2024 and the application, filed on 8/04/2024, was within time; the preliminary objection was dismissed. On joinder, the court held that the 40th Intended Interested Party, having annexed a plot formalization card rather than written authority, had locus only in his own right under Order 1 Rule 8. Applying Order 1 Rule 10(2) and Skov Estate, the court found only Stephen Mbugua Muthui sufficiently proved the root of his title; three other applicants produced certificates of lease but no evidence of allocation dates. The preliminary objection was dismissed, Stephen Mbugua Muthui alone was enjoined as an interested party, directed to file pleadings within 14 days, with costs in the cause.

Key legal issues

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01

Whether the preliminary objection premised on Section 7 of the Limitation of Actions Act was merited

Holding

The preliminary objection was dismissed because the application was filed within the 12-year limitation period, the cause of action having accrued on 29/05/2012 when the 40th Intended Interested Party was allotted the plot

Reasoning

The court applied Section 7 of the Limitation of Actions Act, which bars actions to recover land after 12 years from when the right accrued. The 40th Intended Interested Party's right accrued on 29/05/2012 upon allotment, so the limitation period expired on or about 29/05/2024. The application filed on 8/04/2024 was therefore within time and the objection failed.

p. 4
02

Whether Stephen Mbugua Muthui had locus to swear the supporting affidavit and make the application on behalf of the 46 Intended Interested Parties

Holding

He had locus to make the application only in his own right, as no written authority from the co-applicants was annexed (the document marked SMM-1 was a plot formalization card, not an authority)

Reasoning

Order 1 Rule 8 of the Civil Procedure Rules allows one person to sue or defend on behalf of all in the same interest, but absent written authority he cannot purport to represent the others. Lack of authority does not void the proceedings but incapacitates him from representing the co-applicants, so the application stood as his own.

p. 5
03

Whether the joinder criteria under Order 1 Rule 10(2) were satisfied

Holding

Only the 40th Intended Interested Party satisfied the criteria for joinder, having demonstrated a sufficient interest in L.R. No. 18615 (I.R.66643/1) by proving the root of his title

Reasoning

The applicant had to show his presence was necessary for effectual and complete adjudication; being affected by the outcome is not enough. Stephen Mbugua Muthui produced a Plot Formalization Card, receipt, Certificate of Lease and registered lease, tracing his title's root. Further, a subsisting court order of 30/11/2015 directed that any person with an interest in L.R. No. 18615 (I.R.66643/1) be enjoined as Defendant. He therefore met the criteria; the other 45 did not.

p. 7

Legal principles established

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  • A party raising a preliminary objection must confine itself to points of law, on the assumption that all facts pleaded by the other side are correct, and it cannot be raised if any fact has to be ascertained or judicial discretion exercised
  • Where one person sues on behalf of others in the same interest without written authority, lack of authority does not void the proceedings but incapacitates that person from representing the others; the suit is treated as that of the one plaintiff or defendant
  • An applicant for joinder must demonstrate that his presence is necessary for the effectual and complete adjudication of the suit; being affected by the orders alone is not enough

Court orders

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  1. 1.The Preliminary Objection dated 16/04/2024 is dismissed.
  2. 2.The Chamber Summons Application dated 4/04/2024 is allowed in terms of enjoining Stephen Mbugua Muthui of ID No. 7791470 as an interested party forthwith before the inter partes hearing of the Plaintiff's Suit dated 16/06/2011.
  3. 3.The Interested Party, Stephen Mbugua Muthui of ID No. 7791470 is directed to file his pleadings within 14 days and serve the plaintiff, failing which the joinder order shall lapse at the end of the 14 days.
  4. 4.The plaintiff is directed to file any supplementary affidavit in response within 7 days of service if need be; the hearing of 17/06/2024 shall proceed as scheduled.
  5. 5.Costs shall be in the cause.
Jurisdiction invoked
Order 1 Rule 10(2) & (13) of the Civil Procedure Rules 2010, Section 3 of the Civil Procedure Act and all other enabling provisions of the law

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, "Pentecostal Evangelistic Fellowship of Africa (Suing through its Registered Trustees) v Muriri & 12 others; Wekesa & 45 others (Intended Interested Party) (Environment & Land Case 1454 of 2007) [2024] KEELC 4206 (KLR)", Case Analysis (2024). Chamber Summons Application dated 04/04/2024 in the Plaintiff's Suit dated 16/06/2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4206/eng@2024-05-13

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