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ELCDismissedOriginating Summons dated 7th January 2010, filed 15.9.2010 (Mombasa)· [2017] KEELC 3364 (KLR)

Hamisi Beja & 18 others v Karim Mohamed Hassanali & 3 others [2017] KEELC 3364 (KLR)

Environment and Land Court
24 March 2017
AOA. OmolloCYC. Yano
1,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court refused to let 427 residents join an ongoing land case late, because they hadn't asked to join themselves and it would delay the trial.

What this practically means

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Executive summary

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The 19 plaintiffs/applicants moved the Environment and Land Court at Mombasa by notice of motion dated 27th August 2014 under sections 1A, 1B, 3A and 100 of the Civil Procedure Act and Order 1 rules 10 and 25 and Order 8 rules 3 and 8 of the Civil Procedure Rules, seeking leave to include 427 additional plaintiffs resident on Plot No. 486 MN Section V. They argued that they had originally filed suit in a representative capacity for these individuals and that joinder was necessary to determine the real questions in issue, without prejudice to the defendants. The claim had already been withdrawn against the 3rd and 4th defendants. The 1st and 2nd defendants opposed through a replying affidavit sworn by the 2nd defendant, contending the application was brought to delay the suit, that the additional parties were non-existent on the ground as shown by a court-commissioned joint survey, and that joinder after inordinate delay, with the hearing already underway (1st plaintiff having testified in November 2011 and a site visit conducted in February 2012), would prejudice their right to have the trial concluded without unreasonable delay. In the submissions the respondents relied on authorities including Eastern Bakery vs Costelino and Kyalo vs Bayusuf Brothers Ltd on delay in amendments. The Court, per A. Omollo J, found that the originating summons nowhere pleaded representative capacity for the individual residents, making the application misleading; that the named individuals had produced no statements or authority expressing their wish to be joined, as Order 1 rule 8(3) requires them to move the Court themselves; and that joinder at this late stage would delay the trial. The notice of motion was dismissed with costs to the 1st and 2nd respondents, with liberty noted for the intended plaintiffs to file their own suits.

Key legal issues

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01

Whether the 19 applicants had instituted the suit in a representative capacity on behalf of the 427 individuals

Holding

The Court found that the originating summons did not plead representative capacity for the individual residents

Reasoning

The Court read the originating summons dated 7th January 2010 together with the supporting affidavit sworn by the 1st applicant on behalf of the co-applicants. It found no paragraph pleading that the suit was brought on behalf of the individual residents of Plot No. 486. The applicants' assertion of prior representation was therefore held to be misleading, undermining the foundation of the joinder application.

p. 2
02

Whether the intended parties could be joined on the applicants' motion alone

Holding

No - the named individuals had to move the Court themselves under Order 1 rule 8(3)

Reasoning

Order 1 rule 8(3) permits any person on whose behalf or for whose benefit a suit is instituted to apply to be made a party. The applicants merely annexed a list of names without statements or authority from the named individuals expressing their interest in being joined. Absent such expression, the joinder application could not succeed at the applicants' instance.

p. 2
03

Whether the delay and state of the trial militated against joinder

Holding

Yes - the application came after the hearing had commenced and would delay the trial, prejudicing the defendants' right to property

Reasoning

The Originating Summons was filed on 15.9.2010, pleadings closed on 18.10.2011, the 1st plaintiff testified on 21.11.2011 and a site visit occurred on 16.2.2012. The application was made after hearing had progressed, with no explanation for the delay. Joining the new plaintiffs would delay the trial and conclusion of the matter, and the intended plaintiffs could commence their own suits if advised.

p. 3

Legal principles established

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  • Where it appears to the Court that joinder of plaintiffs may embarrass or delay the trial, the Court may order separate trials or make such other order as may be expedient (Order 1 rule 2, Civil Procedure Rules)
  • It is incumbent upon persons on whose behalf a suit is purportedly instituted to themselves move the Court to be made parties (Order 1 rule 8(3), Civil Procedure Rules)

Court orders

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  1. 1.The notice of motion dated 27th August 2014 is dismissed
  2. 2.Costs of the application awarded to the 1st and 2nd Respondents
Jurisdiction invoked
Sections 1A, 1B, 3A & 100 of the Civil Procedure Act and Order 1 rule 10 & 25 and Order 8 rule 3 & 8 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, "Hamisi Beja & 18 others v Karim Mohamed Hassanali & 3 others [2017] KEELC 3364 (KLR)", Case Analysis (2017). Originating Summons dated 7th January 2010, filed 15.9.2010 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3364/eng@2017-03-24

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