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ELCAllowedNot stated in the judgment· [2024] KEELC 4297 (KLR)

Ngaruiya v Muli & 7 others (Environment & Land Case E003 of 2021) [2024] KEELC 4297 (KLR)

Environment and Land Court
28 May 2024
COChristine Ochieng
1,650 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 in Machakos allowed a Kshs. 60 million chargee and its chargor to join a land ownership case because cancelling the charged title would affect their rights.

What this practically means

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Executive summary

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The court determined a Notice of Motion dated 22nd September 2023 by Weetabix East Africa Limited, the proposed 8th Defendant, seeking joinder of itself and Towfiq Kenya Limited (proposed 7th Defendant) as Defendants, leave to file their Defences, and leave for Simba & Simba Advocates to come on record. The application was supported by the affidavit of Dominic Mbugua Kimani, who explained that Towfiq Kenya Limited had charged LR No. 12715/13857 (original number 12715/134/4) to Weetabix East Africa Limited to secure a debt of Kshs. 60,000,000 by a Charge registered on 21st December 2020; upon default and issuance of statutory notices, the property could not be auctioned because of interlocutory injunction orders issued on 21st August 2021 over the suit property. The plaintiff, Mungai Ngaruiya, opposed the application, contending that he never subdivided his land, that the applicant relied on a fake title, that ownership could be determined without additional parties, and that the suit was at an advanced stage. The court framed a single issue: whether the proposed Defendants should be joined. Relying on Order 1 Rule 10(2) of the Civil Procedure Rules and the decisions in Zephir Holdings Ltd v Mimosa Plantations Ltd and Departed Asians Property Custodian Board v Jafier Brothers Ltd, the court held that because the plaintiff seeks cancellation of titles including the charged subdivision, the proposed Defendants are necessary parties for effectual and complete adjudication, and no prejudice was demonstrated. The application was allowed with costs in the cause, and the joined Defendants were directed to file and serve Defences within fourteen days.

Key legal issues

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Whether the proposed 7th and 8th Defendants ought to be joined to the suit

Holding

Joinder allowed because the charge over one of the subdivided parcels which the plaintiff seeks cancelled makes their presence necessary

Reasoning

The suit concerns ownership of the mother title LR No. 12715/134, subdivided into three parcels. The 7th Defendant charged one subdivision (LR No. 12715/13857) to the 8th Defendant for Kshs. 60,000,000. Since the plaintiff denies the subdivision and seeks cancellation of titles including the charged parcel, the chargee's interests would be directly affected. The plaintiff showed no prejudice from joinder.

p. 4

Legal principles established

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  • A person whose presence is necessary to enable the court effectually and completely adjudicate upon and settle all questions in a suit may be joined as a defendant even where no cause of action lies against them

Court orders

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  1. 1.Leave granted for Towfiq Kenya Limited and Weetabix East Africa Limited to be joined as 7th and 8th Defendants respectively
  2. 2.Leave granted to the 7th and 8th Defendants to file their Defences
  3. 3.Leave granted to the Firm of Simba & Simba Advocates to come on record for the Applicant
  4. 4.7th and 8th Defendants directed to file and serve their respective Defences within fourteen (14) days
  5. 5.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (2)

  • Zephir Holdings Ltd v Mimosa Plantations Ltd, Jeremiah Matagaro & Ezekiel Misango Mutisya
    [2014] eKLR
  • Departed Asians Property Custodian Board v Jafier Brothers Ltd
    [1999] 1 EA 55
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules

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, "Ngaruiya v Muli & 7 others (Environment & Land Case E003 of 2021) [2024] KEELC 4297 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4297/eng@2024-05-28

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