Nasela And Mukakaik Ltd v Kenya Urban Roads Authority & 3 others [2017] KEELC 436 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Joinder of a party as defendant under Order 1 rule 10(2)
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
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.
Setting aside of injunction orders for non-disclosure and misrepresentation under Order 40 rule 7
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
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.
Legal principles established
#- 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
#- 1.The two applications dated 22nd May 2017 are dismissed with costs to be in the cause
- 2.The applicant is granted leave to participate in the suit as an interested party only, subject to the direction of the court
- Jurisdiction invoked
- Civil Procedure Act (section 3A) and Order 1 rule 10 and Order 40 rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.