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ELCDismissedNotice of motion dated 11th July 2014 within the originating summons filed 5th August 2009· [2016] KEELC 59 (KLR)

Mathew M. Kitsao & 43 others v Chandan Jethanand Gidoomal & 10 others [2016] KEELC 59 (KLR)

Environment and Land Court (formerly High Court)
2 December 2016
1,121 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by A. Omollo J, delivered at Mombasa on 2nd December 2016, determined a notice of motion dated 11th July 2014 filed by Kigo Ng'anya, described as the 4th Respondent, seeking vacation of all orders in force to allow him to proceed with construction, striking out of the suit as an abuse of court process on the ground that the plaintiffs were not squatters on Plot No. 49 and 50/XI/M.I., and an order compelling the Municipal Council of Mombasa to pull down illegal and unplanned structures. The plaintiffs opposed, submitting that the applicant was not a party to the suit, as the pleadings named only three Respondents. The court held that the applicant was not a party, his name appearing only in a 2010 contempt-related order, and that he ought first to have sought joinder before seeking substantive orders; he therefore lacked locus standi. On the merits, the court found that the allegation that certain plaintiffs did not reside on the land rested on untested affidavit evidence from third parties - criminal proceedings and a chief's letter - which the criminal court had never determined, and that the affidavit was silent on the majority of the 36 plaintiffs. Such facts could only be proved at the hearing of the suit. The demolition prayer failed for want of grounds and because such a drastic order required sufficient evidence of illegality. The motion was dismissed in its entirety with costs, and the parties were directed to comply with Order 11 within 60 days, with the matter to be listed for pre-trial directions on priority.

Key legal issues

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01

Whether the applicant had locus standi to move the court

Holding

The applicant is not a party to the suit; the pleadings named only three Respondents, and his name appeared only in an order made in a contempt application. Lacking locus, he could not seek substantive orders.

Reasoning

The court perused the record and the pleadings filed on 5th August 2009, which named only Chamdan J. Gidoomal, Prem J. Gidoomal and Municipal Council of Mombasa as Respondents. The applicant's name appeared only in an order of 8th July 2010 issued in a contempt application heard by Ibrahim J. Participation in the cause since 2010 did not make him a party; he should have sought joinder first.

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02

Whether the suit is an abuse of process because the plaintiffs are allegedly not squatters

Holding

No; the claim that some plaintiffs do not live on the land rests on untested affidavit evidence and third-party information, and was silent on the majority of the 36 plaintiffs. It must be determined at the hearing.

Reasoning

The applicant relied on his advocate's reading of criminal proceedings and a chief's letter. The criminal court made no finding on residence, as it was not a matter in issue there. The plaintiffs must be afforded an opportunity to test the veracity of the chief's letter, and the affidavit said nothing about the remaining 36 plaintiffs. The factual dispute can only be resolved at trial.

p. 2
03

Whether the court should order demolition of illegal and unplanned structures

Holding

Refused; no grounds were presented and such a drastic order requires sufficient evidence that the structures are illegal and unplanned.

Reasoning

Prayer 4 of the motion sought an order compelling the Municipal Council to pull down structures within the suit property. The court found no grounds were presented in support, and that the drastic effect of such an order requires sufficient evidence of illegality, which was not shown at the interlocutory stage.

p. 2

Legal principles established

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  • A non-party who claims to be affected by orders in a suit must first seek to be joined before seeking substantive orders in the suit
  • Allegations that a party is not residing on land in dispute are matters of fact to be tested at the hearing, not determined on an interlocutory application on affidavit evidence from third parties

Court orders

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  1. 1.The notice of motion dated 11th July 2014 is dismissed in its entirety with costs
  2. 2.The plaintiff is directed to file statements and documents in compliance with Order 11 within 60 days and serve the defendants
  3. 3.The defendants are directed to comply with Order 11 within the same timelines
  4. 4.Thereafter the matter to be listed for pre-trial directions from the registry on priority

Authorities

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Legislation

  • High Court Practice & Procedure RulesRule 2(3) and 3
  • Judicature ActSection 5
  • Civil Procedure ActSection 3A
  • Supreme Court Practice Rules of EnglandOrder 52 Rules (2) & (3)
  • Civil Procedure Rules (Order 11 compliance directions)Order 11
Jurisdiction invoked
Rule 2(3) and 3 of the High Court Practice & Procedure Rules; Section 5 of the Judicature Act; Section 3A of the Civil Procedure Act; Order 52 Rules (2) & (3) of the Supreme Court Practice Rules of England

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, "Mathew M. Kitsao & 43 others v Chandan Jethanand Gidoomal & 10 others [2016] KEELC 59 (KLR)", Case Analysis (2016). Notice of motion dated 11th July 2014 within the originating summons filed 5th August 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/59/eng@2016-12-02

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