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ELCPartially AllowedNotice of motion dated 15th December 2014· [2015] KEELC 604 (KLR)

Mohamed Abdalla Dago & 3 others v Abdul Hussein Omari Kilalo alias Kadir Hussein Omari [2015] KEELC 604 (KLR)

Environment and Land Court (High Court), Mombasa
11 March 2015
AOA. Omollo
918 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court allowed villagers to join a land dispute over their mosque, but only after paying KShs. 100,000 as security for costs.

What this practically means

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Executive summary

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Eight applicants, through a notice of motion dated 15th December 2014 supported by an affidavit of Hassan Ali Ngenya, sought joinder as defendants in a suit over plot Kwale/Msambweni/2189. They relied on three grounds: the existence of a mosque built in 1914 by their forefathers on the far end of the land, used by over 130 villagers for daily prayers; the suit land falling within 60 metres of the high sea and thus a public utility; and that the true title was held by a third party, rendering the plaintiffs' claim baseless. The defendant did not oppose the application. The plaintiffs opposed it, submitting that the applicants were trespassers who had not disclosed any legal or equitable interest, and cited Samuel Mwangi vs Jeremiah Gitobu (2012) eKLR. The 3rd plaintiff further deposed that a similar claim had been dismissed by the Special District Commissioner, and that Beach Cot Limited no longer existed. The court noted the citation errors in the motion (non-existent section 2A and the wrong Order 1 rule), and presumed the applicants intended Order 1 rule 3, which governs joinder of defendants. It observed that whether a mosque existed since 1914 was a matter requiring proof by evidence, but that since the suit sought a permanent injunction against trespass and the applicants admitted worshipping on the land, any order made would affect them. The court allowed the joinder in the interests of justice, but on condition that the applicants deposit KShs. 100,000/= in court within 60 days as security for costs, failing which they would not be allowed to participate in the proceedings.

Key legal issues

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01

Joinder of parties under Order 1 rule 3 of the Civil Procedure Rules

Holding

The applicants were joined as defendants because the order sought in the suit would affect them, even though the basis of their claim may be without merit.

Reasoning

The court considered that the suit sought a permanent injunction restraining trespassing on the suit property, and the applicants admitted worshipping on a portion of that land. If the suit succeeded, the order stopping them from continuing such worship would affect them. The court therefore found that it was in the interests of justice to allow them to participate, but conditioned the joinder on a deposit as security for costs.

p. 3
02

Security for costs for applicants imposing themselves in a suit

Holding

The court directed the applicants to deposit KShs. 100,000/= within 60 days as security for costs, failing which they would not be allowed to participate.

Reasoning

The applicants had imposed themselves in the plaintiffs' suit, and the court, in exercise of its discretion under the inherent powers of the court and the overriding objective, conditioned their participation on a deposit to secure the plaintiffs' costs.

p. 3

Legal principles established

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  • A party whose rights will be affected by the outcome of a suit should be afforded a hearing by being allowed to participate in the proceedings, even if the basis of their claim may be without merit.

Court orders

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  1. 1.The applicants are joined as defendants in the suit
  2. 2.The applicants to deposit KShs. 100,000/= in court within 60 days as security for costs in favour of the plaintiffs
  3. 3.In default of the deposit, the applicants shall not be allowed to participate in the proceedings

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 1 rule 1
  • Civil Procedure RulesOrder 1 rule 3

Cases cited (1)

  • Samuel Mwangi vs Jeremiah Gitobu
    (2012) eKLR
Jurisdiction invoked
Sections 1A, 3A of the Civil Procedure Act and Order 1 rule 3 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, "Mohamed Abdalla Dago & 3 others v Abdul Hussein Omari Kilalo alias Kadir Hussein Omari [2015] KEELC 604 (KLR)", Case Analysis (2015). Notice of motion dated 15th December 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/604/eng@2015-03-11

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