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ELCPartially AllowedMombasa ELC Case (referenced suit); applications in relation to Constitutional Petition No. 1 of 2013· [2014] KEELC 476 (KLR)

Brek Sulum Hemed v Constituency Development Fund Board & another [2014] KEELC 476 (KLR)

Environment and Land Court
25 February 2014
2,364 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 let 18 residents join a road dispute because any landowner's claim depends on their title being valid.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Mombasa (Muriithi J) on a notice of motion dated 11th December 2013 seeking the joinder of 18 applicants, led by Abdalla Said Jumaan, as necessary parties to the plaintiff's suit against the Constituency Development Fund Board and the Kenya Rural Roads Authority over the construction of a road encroaching on the plaintiff's parcel MSA/BLOCKXVI/564 at Mwembe Tanganyika, Mombasa. The applicants, residents and plot owners along the access road, claimed the plaintiff's title was a nullity and that its recognition would permanently block their access. The plaintiff opposed, contending the application was a delaying tactic, that any challenge to title should be brought in a separate suit, and that no draft defence or counterclaim had been attached. The 2nd defendant did not oppose. The court held that a draft defence is not essential where the issues appear from the application; that there is no codified procedure for joining 'interested parties', which developed by implication; and that under Order 1 rule 10(2) 'all questions involved in the suit' should not be restrictively construed - the validity of the plaintiff's title is inherently involved because his cause of action rests on that title. A separate suit was rejected as inconsistent with the overriding objective and as risking contradictory verdicts, section 6 sub judice not barring consolidation. The application was allowed; the applicants were joined as necessary or interested parties, with 14 days to file defence and counterclaim, and costs in the cause.

Key legal issues

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01

Joinder of applicants as necessary parties

Holding

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

Reasoning

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.

p. 4
02

Joinder as interested parties versus necessary parties

Holding

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

Reasoning

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.

p. 3
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Sub judice and consolidation

Holding

Section 6 sub judice does not bar the power of the court to consolidate an earlier and a later suit over the same property

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Applicants' application for joinder allowed; the 18 applicants joined in the suit as necessary or interested parties
  2. 2.Applicants to file their defence and counterclaim, if any, within 14 days from the date of the ruling
  3. 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. 4.Costs of the application to be costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 1 rule 10(2); Order 1 rule 25; Order 41 rule 5; Order 53 rule 3(2); Order 7
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSection 6

Cases cited (1)

  • Gupta v. East Asiatic Co.
    AIR 1960 All 184
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.