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ELCPartially AllowedNot stated in judgment· [2013] KEELC 126 (KLR)

Joseph Leboo & 2 others v Director Kenya Forest Services & another (Environment & Land Case 273 of 2013) [2013] KEELC 126 (KLR)

Environment and Land Court
20 June 2013
MSMunyao Sila
3,148 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that outsiders cannot force their way into a lawsuit as defendants, but people directly affected can join as interested parties.

What this practically means

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Executive summary

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The plaintiffs, committee members of the Lembus Council of Elders in Baringo County, sued the Director of Kenya Forest Services and the Baringo County Forest Co-Ordinator, alleging that in March 2012 the defendants allocated pre-qualified and unqualified saw millers to harvest timber and firewood in eight blocks of Lembus Forest without following the procedures laid down in the Forest Act, 2005 and the Forest (Participation in Sustainable Management) Rules, 2009, without a management plan, and without consulting the community. The plaintiffs sought a permanent injunction and nullification of the allocations; interim restraining orders had been granted on 7 May 2013. Two applications for joinder followed: one by four officials of the Timber Manufacturers Association and the Association itself, and one by Comply Limited, each seeking to be enjoined because the interim orders and prayers in the suit affected them. Both applicants, in submissions, sought joinder as defendants rather than as interested parties. The court declined joinder as defendants, holding that Order 1 Rule 15 concerns third-party proceedings and Rule 3 addresses plaintiffs joining multiple defendants; that the choice of whom to sue belongs to the plaintiff; and that the applicants, as mere beneficiaries of licences, cannot answer for the statutory entities empowered to issue them. The court allowed joinder as interested parties, holding that a person with a demonstrated direct and legitimate interest in the subject matter ought generally to be admitted, though the test must exclude busy-bodies. The extent of their participation was reserved for the court's directions, and no orders as to costs were made.

Key legal issues

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01

Whether the applicants can be joined as defendants under Order 1 Rules 3 and 15

Holding

No. Order 1 Rule 15 governs third-party proceedings by defendants and does not apply; Rule 3 addresses joinder of multiple defendants by a plaintiff. The applicants are not necessary parties and cannot be made defendants on their own application.

Reasoning

The court held that Rule 15 covers third-party notices issued by defendants, a situation not applicable to the applicants. Rule 3 is an instruction to persons filing suits. Courts should not choose a defendant for a plaintiff, especially where the plaintiff objects; the applicants are beneficiaries of licences, not the statutory licence-granting entities, and cannot answer whether licensing complied with the Forest Act.

p. 4
02

Whether the applicants can be joined as interested parties

Holding

Yes. They have demonstrated a legitimate and direct interest as the orders sought will affect them, and they may possess knowledge that will assist the court.

Reasoning

The court found the applicants' interest direct and legitimate: the permanent injunction and nullification orders sought would affect them. The joinder test for interested parties is less stringent than for defendants, but not so liberal as to admit busy-bodies. Their extent of participation is left to the court's directions.

p. 4

Legal principles established

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  • The choice of whom to sue belongs to the plaintiff, and courts should be cautious about joining a defendant on an application not made by the plaintiff.
  • Joinder as an interested party requires demonstration of a direct interest in the subject matter, though it need not be as stringent as joinder as a defendant.
  • An interested party is neither plaintiff nor defendant and, absent defined rules, the court may define the parameters of the interested party's involvement.

Court orders

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  1. 1.The applicants' joinder as defendants is declined
  2. 2.The applicants are allowed to be enjoined as interested parties
  3. 3.The extent of the interested parties' involvement is reserved for the court's directions; they are free to seek leave to file documents or make submissions
  4. 4.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure Act (Cap 21)Sections 1A and 1B
  • Civil Procedure Rules 2010Order 1 Rule 3
  • Civil Procedure Rules 2010Order 1 Rule 15
  • Civil Procedure Rules 2010Order 1 Rule 10(2)
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Forest Act, 2005Not specified
  • Forest (Participation in Sustainable Management) Rules, 2009Not specified
  • Societies ActNot specified

Cases cited (1)

  • Supermarine Handling Services Ltd vs Commissioner General, Kenya Revenue Authority
    (2002) 2 KLR 758
Jurisdiction invoked
Sections 3A, 1A and 1B of the Civil Procedure Act and Order 1 Rules 3, 10(2) and 15 and Order 51 Rule 1 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, "Joseph Leboo & 2 others v Director Kenya Forest Services & another (Environment & Land Case 273 of 2013) [2013] KEELC 126 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/126/eng@2013-06-20

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