Mathew M. Kitsao & 43 others v Chandan Jethanand Gidoomal & 10 others [2016] KEELC 59 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicant had locus standi to move the court
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.
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.
Whether the suit is an abuse of process because the plaintiffs are allegedly not squatters
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.
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.
Whether the court should order demolition of illegal and unplanned structures
Refused; no grounds were presented and such a drastic order requires sufficient evidence that the structures are illegal and unplanned.
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 11th July 2014 is dismissed in its entirety with costs
- 2.The plaintiff is directed to file statements and documents in compliance with Order 11 within 60 days and serve the defendants
- 3.The defendants are directed to comply with Order 11 within the same timelines
- 4.Thereafter the matter to be listed for pre-trial directions from the registry on priority
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.