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ELCAllowedMiscellaneous Application arising from Memorandum of Appeal dated 5th August 2011 (suit number not stated in the judgment)· [2016] KEELC 723 (KLR)

Macharia Kamochio & 3 others v Commissioner for Co-operative Development and Marketing & another [2016] KEELC 723 (KLR)

Environment and Land Court
4 March 2016
LGL. Gacheru
1,488 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a landowner to join a co-operative appeal because his 130-acre property was at risk from its outcome.

What this practically means

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Executive summary

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This ruling by L. Gacheru J of the Environment and Land Court at Nairobi, delivered on 4th March 2016, determined a Notice of Motion dated 19th December 2013 by Mburu Kinani seeking leave to join the suit as an interested party, tender evidence and participate in proceedings. The suit is an appeal by the Kanyeki Farmers Co-operative Society Limited, whose registration was cancelled by the Commissioner of Societies, a decision affirmed by the Minister of Co-operative Development and Marketing, and against whose decision of 7th June 2011 directing liquidation of the Society the appeal was lodged. The Applicant claimed to be the registered and indefeasible proprietor of LR No. 3777/890, IR 96015, comprising 130 acres which the Appellants alleged belonged to the Society for distribution to its members, and complained he had been adversely mentioned as having unjustly acquired the property. The Appellants opposed, contending the Applicant lacked locus standi, was not a party to the proceedings before the Minister, and that the application was frivolous and an abuse of process. Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the settled necessary-party test, the court held that the Applicant had demonstrated an interest in the suit property, would be prejudiced if not joined, and that his presence was necessary to enable the court effectually and completely adjudicate upon and settle all questions in the suit. The application was allowed entirely, with costs in the cause.

Key legal issues

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01

Whether the Applicant demonstrated an interest warranting joinder as an interested party under Order 1 Rule 10(2) of the Civil Procedure Rules

Holding

The Applicant, as registered proprietor of the 130 acres which is the subject of the appeal and who had been adversely mentioned, had demonstrated a sufficient interest and stood to be prejudiced if not joined; his presence was necessary for complete adjudication.

Reasoning

The appeal challenged the Minister's decision directing liquidation of the Society, and one ground concerned 130 acres of land held by the Applicant as registered and indefeasible proprietor. The Minister had found the Society owned no assets. Since the Applicant claimed ownership of that land and had been adversely mentioned as having unjustly acquired it, an interest was demonstrated and joinder was necessary for the court to effectually and completely settle all questions.

p. 3

Legal principles established

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  • The guiding principle in deciding whether a party is necessary is whether the presence of the party would enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit.

Court orders

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  1. 1.The Notice of Motion dated 19th December 2013 is allowed entirely
  2. 2.The Applicant is granted leave to join the suit as an interested party
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 47, 50, 159(2)(e), 3(1), 159(2)(b)
  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (8)

  • Meme vs. Republic
    (2004) 1 EA 124
  • Mumo Matemu vs. Trusted Society of Human Rights Alliance and 5 others
    (2013) eKLR
  • Kingori vs. Chege & 3 others
    (2002) 2 KLR 243
  • Werrot & Co. Ltd & others vs. Andrew Douglas Gregory & others
    Nairobi HCCC No. 2363 of 1998
  • Amon vs. Raphael Tuck & Sons Ltd
    (1956) 1 All ER 273
  • Laisa Mpoye & 2 others vs. Kajiado Central Milk Project "The Board" & 5 others
    (2012) eKLR
  • Eastern Bakery vs. Castelino
    (1958) EA 461
  • Hagod Jack Simonian vs. Johar and others
    (1962) 1 EA 336
On appeal from
Minister of Co-operative Development and Marketing (appeal from Minister's decision)
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules (appeal against the Minister's decision of 7th June 2011)

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, "Macharia Kamochio & 3 others v Commissioner for Co-operative Development and Marketing & another [2016] KEELC 723 (KLR)", Case Analysis (2016). Miscellaneous Application arising from Memorandum of Appeal dated 5th August 2011 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/723/eng@2016-03-04

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