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ELCPartially AllowedELC 73 of 2016 (formerly consolidated with ELC 76 of 2016)· [2018] KEELC 896 (KLR)

Mohamed Feisal Mohamud & 2 others v Richard Guya Membo & 2 others [2018] KEELC 896 (KLR)

Environment and Land Court
14 November 2018
886 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is an interlocutory ruling by S.M. Kibunja, Judge of the Environment and Land Court at Kisumu, delivered on 14th November 2018 in ELC 73 of 2016, which had been consolidated with ELC 76 of 2016 by an order of 20th April 2016. The court dealt with four oral applications made following directions of 12th November 2018. First, the 1st Plaintiff sought leave to amend the plaint to enjoin the four Plaintiffs in ELC 76 of 2016, whose claims had been withdrawn, as Defendants in ELC 73 of 2016. Second, Mr. Ouma sought an adjournment to prepare the 2nd and 3rd Plaintiffs whose claims had been reinstated on 12th November 2018. Third, Mr. Ragot for the 1st and 3rd Defendants sought review of the status quo order of 13th April 2016 so that rent collected from the suit properties would be deposited in an interest-earning account in the joint names of counsel. Fourth, the 2nd Defendant sought last-chance leave to file witness statements and documents. The court set aside the consolidation order, separated and closed ELC 76 of 2016, granted leave to amend the plaint with joinder of the former ELC 76 Plaintiffs as Defendants within fourteen days, required the Defendants to file amended defences, allowed the adjournment and took out the hearing of 20th November 2018, and declined the review of the status quo order on rent deposits as previously litigated and dismissed. No costs order was made.

Key legal issues

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01

Joinder of necessary parties by amendment of pleadings

Holding

Leave granted to amend the plaint to enjoin the former Plaintiffs in ELC 76 of 2016 as Defendants in ELC 73 of 2016

Reasoning

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.

p. 2
02

Review of the status quo/consent order of 13th April 2016 on collection of rent from the suit properties

Holding

Application for review declined

Reasoning

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.

p. 2
03

Effect of withdrawal of claims by the Plaintiffs in the consolidated suit ELC 76 of 2016

Holding

Consolidation order set aside and ELC 76 of 2016 marked closed

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.The consolidation order of 20th April 2016 made in ELC 76 of 2016 is reviewed and set aside
  2. 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. 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. 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. 5.Mr. Ouma's application for adjournment granted; the hearing of 20th November 2018 is taken out
  6. 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

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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, "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.