Brek Sulum Hemed v Constituency Development Fund Board & another [2014] KEELC 476 (KLR)
The bottom line
#Kenya's Environment and Land Court let 18 residents join a road dispute because any landowner's claim depends on their title being valid.
What this practically means
#Executive summary
#Key legal issues
#Joinder of applicants as necessary parties
Applicants joined as necessary parties because the validity of the plaintiff's title is inherently involved in the suit; the plaintiff's cause of action is predicated on his registered ownership
The court held that an issue is 'involved in the suit' if it is so related to the suit as to affect the questions in it. Because the plaintiff's right to sue over the road encroachment rests on his title, a challenge to that title relates directly to the question in the suit, making the applicants necessary for effective and complete adjudication.
Joinder as interested parties versus necessary parties
The court need not distinguish rigidly: as necessary parties rule 10 applies; as interested parties the applicants need only demonstrate interest in the subject of the suit
The court observed that the joinder may occur on the court's own motion or on application, and that whether the applicants come in as necessary or interested parties does not affect their entitlement, since in either case the interest of justice favours their involvement.
Sub judice and consolidation
Section 6 sub judice does not bar the power of the court to consolidate an earlier and a later suit over the same property
Rejecting the plaintiff's proposal for a separate suit, the court noted the risk of contradictory verdicts on the same title and relied on Mulla's Code of Civil Procedure citing Gupta v. East Asiatic Co. to hold that consolidation remains available notwithstanding section 6.
Legal principles established
#- A person who is not a party but seeks joinder as a necessary party may invoke the inherent jurisdiction of the court and the overriding objective of the civil process under Order 1 rule 10(2).
- 'All questions involved in the suit' in Order 1 rule 10(2) is not to be restrictively construed to mean only questions raised by present parties; an issue so related to the suit as to affect the questions in it is involved in it.
- There is no procedure under the Civil Procedure Act and Rules for joinder of 'interested parties'; that practice developed by necessary implication.
- Default in attaching a draft defence to a joinder application is not fatal if the issues can be ascertained from the application itself.
Court orders
#- 1.Applicants' application for joinder allowed; the 18 applicants joined in the suit as necessary or interested parties
- 2.Applicants to file their defence and counterclaim, if any, within 14 days from the date of the ruling
- 3.Plaintiff may file a reply to the defence and counterclaim within 14 days of service, after which the matter proceeds for pre-trial directions
- 4.Costs of the application to be costs in the cause
- Jurisdiction invoked
- Inherent jurisdiction and overriding objective under sections 1A, 1B and 3A of the Civil Procedure Act; Article 159 of the Constitution; Order 1 rule 10(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Charles Mutuku v Christopher Nzioki & another [2019] KEELC 4463 (KLR)[2019] KEELC 4463 (KLR)21 Feb 2019
Cite this brief
#Cite this brief
Caselaw, "Brek Sulum Hemed v Constituency Development Fund Board & another [2014] KEELC 476 (KLR)", Case Analysis (2014). Mombasa ELC Case (referenced suit); applications in relation to Constitutional Petition No. 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/476/eng@2014-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.