Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the judgment· [2017] KEELC 3605 (KLR)

Anas Hassan Musa Khamisa v Amanda Mary Seel t/a Zinji Workshop [2017] KEELC 3605 (KLR)

Environment and Land Court (or superior court of first instance, Malindi)
17 February 2017
JOJ. Olola
923 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to remove a tenant from a land access dispute, ruling her landlord must be added as a party before the case can proceed.

What this practically means

#

Executive summary

#
The Plaintiff sued the Defendant, alleging that she had leased two parcels of land (L.R No. 1513/126 and Group 1/57) adjacent to the Plaintiff's parcel LR. 1513/127 and had erected a fence across the Plaintiff's land together with a metallic gate on the public access road, thereby obstructing the Plaintiff's access to his land. The Defendant, in her Written Statement of Defence, contended that the suit disclosed no cause of action against her as she was merely a tenant with no mandate to develop the suit property without her landlord's consent, whom she identified as Suleiman Rashid Abdalla. At the hearing on 6th February 2017, the Defendant's counsel made an oral application for striking out the Defendant's name on the ground of misjoinder, relying on the pleaded tenancy. The Plaintiff opposed, maintaining the Defendant was in physical possession and had blocked access, and in the alternative sought leave to amend the pleadings to enjoin the proper party. Applying the Mukisa Biscuit principle that a preliminary objection must be a pure point of law not requiring ascertainment of facts, the court noted that the alleged tenancy agreement was not filed and the parties could not agree whether it even related to the suit parcel. The objection therefore failed. However, exercising its powers under Order 1 Rule 10(a) of the Civil Procedure Rules, the court held that the landlord's presence was necessary to effectually and completely adjudicate on all questions in the suit. The court ordered the Plaintiff to amend the Plaint within 14 days and serve the amended summons and Plaint on both the new and original defendants, with the matter to be mentioned on 16th March 2017 for further directions.

Key legal issues

#
01

Whether the misjoinder objection could succeed on the pleaded facts

Holding

The objection failed because determining it would require ascertaining facts - the existence, terms and subject land of the alleged tenancy agreement

Reasoning

The court applied the Mukisa Biscuit principle that a preliminary objection must be a pure point of law. Here, both parties referenced an alleged tenancy agreement which was not filed, and they could not even agree whether it related to the parcel in dispute. Ascertainment of those facts was necessary before the joinder question could be resolved, so the objection could not stand.

p. 2
02

Whether the landlord should be joined as a party

Holding

The court, invoking Order 1 Rule 10(a) of the Civil Procedure Rules, found the landlord Suleiman Rashid Abdalla a necessary party and ordered joinder by amendment of the Plaint

Reasoning

The Defendant denied liability on the basis that she is a mere tenant without mandate to develop the property without the landlord's consent. The court reasoned that the landlord's presence is necessary to enable it effectually and completely adjudicate upon and settle all questions involved in the suit, and therefore directed the Plaintiff to amend the Plaint and serve the new and original defendants.

p. 2

Legal principles established

#
  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained

Court orders

#
  1. 1.The Defendant's oral application for striking out her name for misjoinder is declined; the court is unable at this stage to strike out the Defendant's name from the suit
  2. 2.The Plaintiff is ordered to proceed within 14 days to amend the Plaint in such manner as may be necessary
  3. 3.The Plaintiff is to serve the amended copies of the summons and the Plaint upon the new defendant as well as the original defendant
  4. 4.The matter shall be mentioned on 16th March 2017 for further directions

Authorities

#

Legislation

  • Civil Procedure RulesOrder 1 Rule 10(a)

Cases cited (1)

  • Mukisa Biscuit Co -vs- West End Distributors (1969) EA 606
    (1969) EA 606
Jurisdiction invoked
Original civil jurisdiction over the land dispute; jurisdiction to strike out or join parties under Order 1 Rule 10(a) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Anas Hassan Musa Khamisa v Amanda Mary Seel t/a Zinji Workshop [2017] KEELC 3605 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3605/eng@2017-02-17

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