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ELCDismissed· [2017] KEELC 436 (KLR)

Nasela And Mukakaik Ltd v Kenya Urban Roads Authority & 3 others [2017] KEELC 436 (KLR)

Environment and Land Court
19 December 2017
2,954 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 refused to make Kitui County a defendant and kept an injunction blocking a road built on private land.

What this practically means

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Executive summary

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The County Government of Kitui brought two applications dated 22nd May 2017: one under Order 1 rule 10 and Order 51 rule 1 of the Civil Procedure Rules seeking joinder as a defendant, and another under Order 40 rule 7 seeking the setting aside and discharge of a temporary injunction granted on 11th October 2016 and confirmed on 8th November 2016 in a suit in which the plaintiff alleged that the defendants diverted an existing service road onto its private parcel, L.R No. 4096/232/Kitui Township. The applicant argued the road construction was complete when the injunction was obtained, that the plaintiff failed to disclose material facts, and that it should be joined to protect the public interest in a road built with taxpayers' money. The plaintiff opposed, contending it had no cause of action against the applicant, that the suit property was private, and that public interest could not justify trespass on private land. The court held that under Order 1 rule 10(2) joinder as defendant is permissible only where a person ought to have been joined under Order 1 rule 3 or where its presence is necessary for complete adjudication. The applicant was not involved in the construction, had no right over the private property, and public interest was protected by the Attorney General appearing for the 1st defendant. Both applications were dismissed with costs in the cause, but the applicant was granted leave to participate as an interested party. The court declined to discharge the injunction, finding no cogent evidence of misdirection and observing that permitting construction of a public road on private land would affront the plaintiff's constitutional property rights.

Key legal issues

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01

Joinder of a party as defendant under Order 1 rule 10(2)

Holding

Application for joinder as defendant refused; the applicant has no cause of action against it and the applicant's legal rights would not be affected, though it may participate as an interested party

Reasoning

The claim is one in trespass against the defendants who constructed the road; the applicant is not involved in the construction and has no statutory or constitutional right over the private suit property. The two gateways under Order 1 rule 10(2) were not satisfied. Public interest is protected by the Attorney General for the 1st defendant. The court, however, allowed the applicant to participate as an interested party given its general interest in a road built within its jurisdiction.

p. 4
02

Setting aside of injunction orders for non-disclosure and misrepresentation under Order 40 rule 7

Holding

Application dismissed; no cogent evidence that the court was misled, and discharging the injunction would enable continued construction of a public road on private property

Reasoning

The orders complained of were issued against the defendants, not the applicant, who did not show how they affected it. There was no contest that the road was being constructed on private property, and neither the defendants nor the applicant justified that construction. Allowing construction to continue would violate the plaintiff's constitutional right to property and protection from arbitrary deprivation without just compensation.

p. 5

Legal principles established

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  • A person may be joined as defendant only if he ought to have been joined under Order 1 rule 3 or his presence is necessary for effectual adjudication of all questions in the suit
  • Public property cannot be constructed on private land without justification, and discharging an injunction permitting such construction would offend constitutional property rights

Court orders

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  1. 1.The two applications dated 22nd May 2017 are dismissed with costs to be in the cause
  2. 2.The applicant is granted leave to participate in the suit as an interested party only, subject to the direction of the court

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 3
  • Civil Procedure RulesOrder 1 rule 10(1)-(4)
  • Civil Procedure RulesOrder 40 rule 7
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure Actsection 3A
  • Kenya Roads ActChapter 408 Laws of Kenya (mandate to manage, develop and maintain urban roads)

Cases cited (2)

  • Deported Asians property Custodian Board vs. Jaffer Brothers Limited
    (1999) 1 E.A 55 (SCU)
  • Pravin Bowry vs. John Ward and another
    (2015) eKLR
Jurisdiction invoked
Civil Procedure Act (section 3A) and Order 1 rule 10 and Order 40 rule 7 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, "Nasela And Mukakaik Ltd v Kenya Urban Roads Authority & 3 others [2017] KEELC 436 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/436/eng@2017-12-19

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