Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 7th February 2017 (in the Malindi Environment and Land suit)· [2017] KEELC 1859 (KLR)

Chebuswa Limited v Yew Investments t/a Dorado Cottages Mld & another [2017] KEELC 1859 (KLR)

Environment and Land Court of Kenya
19 September 2017
JOJ. O. Olola
2,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to let licence holders join a beach dispute, ruling a temporary licence issued despite existing court orders grants no legal rights.

What this practically means

#

Executive summary

#
The three Applicants moved the Environment and Land Court at Malindi by a notice of motion dated 7th February 2017 seeking to be joined as interested/third parties to a suit filed by the Plaintiffs on 26th February 2016 against the 1st and 2nd Defendants concerning illegal sun beds, sheds and structures erected along the beach fronting the Plaintiffs' Plot No. 1356 Malindi. They also sought leave to enter appearance, a stay of the injunction granted on 27th September 2016 as enforced by the OCS Malindi on 3rd February 2017, and a review of those injunctive and enforcement orders. They claimed to be beneficiaries of a Temporary Occupation Licence issued by the County Government of Kilifi on 22nd December 2016 over the beach fronting the suit land. The Plaintiffs opposed, arguing the licence was issued while the injunctions were in force, was irregular, and that the Applicants were in collusion with the Defendants. Justice J.O. Olola set out the test for joinder under Order 1 Rule 10(2), applying Jan Bolden Nielsen v Hersman Philipus Steyn and Amon v Raphael Tuck & Sons: an applicant must be directly and legally interested, not merely commercially or indirectly so. The court found the Applicants had not demonstrated any prejudice or business on the beach, that their licence was temporary, conferred no proprietary rights and prohibited permanent structures, and that the licensor was already a party. Notably, the licence had been granted by the 2nd Defendant while fully aware of the suit and subsisting orders. The application was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

#
01

Test for joinder of a party as interested/third party

Holding

The applicant must show they are a necessary and proper party whose presence is required for effectual adjudication and enforcement of any decree; commercial or indirect interest is insufficient

Reasoning

The court adopted the principles in Jan Bolden Nielsen v Hersman Philipus Steyn and Amon v Raphael Tuck & Sons: a person is a necessary party only if bound by the result and if the question in the action cannot be effectually and completely settled unless they are a party. The Applicants had only an indirect interest; their licence was temporary, conferred no proprietary rights, prohibited structures, and the licensor (2nd Defendant) was already a party. Their joinder was therefore unnecessary.

p. 4
02

Effect of a Temporary Occupation Licence issued pending subsisting injunctions

Holding

Such a licence does not confer proprietary rights or grounds for joinder, stay or review

Reasoning

The court noted the licence issued on 22nd December 2016 by the County Government of Kilifi was granted while the suit (filed 26th February 2016) and injunctive orders were subsisting, and the 2nd Defendant was fully aware of them. The licence expressly prohibited permanent structures, warned against public nuisance, and did not confer proprietary rights. The Applicants could not claim the structures were theirs or that the beach-use question could not be settled without them.

p. 4

Legal principles established

#
  • A party to be joined under Order 1 Rule 10(2) must be a necessary and proper party whose presence is required for the court to effectually and completely adjudicate the matter and without whom any resultant decree cannot be enforced
  • A licence issued over a beach while a party was aware of subsisting injunctive orders cannot bestow enforceable rights on the licensee in those proceedings

Court orders

#
  1. 1.The application dated 7th February 2017 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (2)

  • Jan Bolden Nielsen –vs- Hersman Philipus Steyn & 2 Others
    (2012) eKLR
  • Amon –vs- Raphael Tuck & Sons
    (1956) 1 All ER 273
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules (inherent jurisdiction to join necessary and proper parties)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Chebuswa Limited v Yew Investments t/a Dorado Cottages Mld & another [2017] KEELC 1859 (KLR)", Case Analysis (2017). Notice of Motion dated 7th February 2017 (in the Malindi Environment and Land suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1859/eng@2017-09-19

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