Mohamed Feisal Mohamud & 2 others v Richard Guya Membo & 2 others [2018] KEELC 896 (KLR)
The bottom line
#A Kenyan court can add parties to a land case even late, but will not reconsider an order you already lost without new grounds.
What this practically means
#Executive summary
#Key legal issues
#Joinder of necessary parties by amendment of pleadings
Leave granted to amend the plaint to enjoin the former Plaintiffs in ELC 76 of 2016 as Defendants in ELC 73 of 2016
Although the Plaintiffs failed to disclose why the ELC 76 Plaintiffs were not originally joined, the court found the amendment application not without merit. Allowing it would reopen pleadings and cause further delay, but fairness required that all parties concerned in the issues participate in the proceedings. Leave was granted with a 14-day timeline.
Review of the status quo/consent order of 13th April 2016 on collection of rent from the suit properties
Application for review declined
The order of 13th April 2016 had merely preserved the status quo under the lower court order of 16th March 2016 in Kisumu CMCC No. 110 of 2016. The question of reviewing that consent order had already been litigated in a notice of motion dated 22nd June 2016 and dismissed by the ruling of 24th May 2017. The court found no reasonable basis to revisit it then.
Effect of withdrawal of claims by the Plaintiffs in the consolidated suit ELC 76 of 2016
Consolidation order set aside and ELC 76 of 2016 marked closed
Since the four Plaintiffs in ELC 76 of 2016 had wholly withdrawn their claims through orders of 5th December 2016 and 12th November 2016, there was nothing remaining to justify continued consolidation. The consolidation order of 20th April 2016 was reviewed and set aside and the records separated.
Legal principles established
#- Where parties consolidated in one suit have wholly withdrawn their claims, the consolidation order should be reviewed and set aside and the file marked closed
- It is fair and just to allow joinder of parties by amendment so that all persons concerned in the issues participate in the proceedings, notwithstanding the resulting reopening of pleadings
Court orders
#- 1.The consolidation order of 20th April 2016 made in ELC 76 of 2016 is reviewed and set aside
- 2.The record for ELC 76 of 2016 is to be separated from ELC 73 of 2016 and ELC 76 of 2016 is marked closed
- 3.Leave granted for the Plaintiffs to file and serve an amended plaint enjoining the former Plaintiffs in ELC 76 of 2016 as Defendants within 14 days, together with any additional statements and list of documents
- 4.Existing Defendants to file and serve amended statements of defence incorporating the added parties upon service, with liberty to file additional statements and documents
- 5.Mr. Ouma's application for adjournment granted; the hearing of 20th November 2018 is taken out
- 6.Mr. Ragot's application to review the status quo order on rent deposits is declined
- Jurisdiction invoked
- Inherent powers of the Environment and Land Court to review and regulate its own interlocutory orders in ELC 73 of 2016 and ELC 76 of 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Feisal Mohamud & 2 others v Richard Guya Membo & 2 others [2018] KEELC 896 (KLR)", Case Analysis (2018). ELC 73 of 2016 (formerly consolidated with ELC 76 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/896/eng@2018-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.