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ELCAllowedNot stated in judgment· [2018] KEELC 1425 (KLR)

Flash Audio Services Limited v Mbesa Limited & another [2018] KEELC 1425 (KLR)

Environment and Land Court
5 October 2018
KBK. BOR
512 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed the National Land Commission to join a private land dispute because its records were essential to deciding who rightfully owns the land.

What this practically means

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Executive summary

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The National Land Commission applied by notice dated 19/2/2018 to be joined to these proceedings as an Interested Party, to file responses within 21 days, and to participate fully in the trial by calling witnesses, cross-examining and making submissions. NLC described itself as custodian of records relating to alienation of Government land, and asserted that the Suit Properties, L.R. No. 1870/1/186 and L.R. No. 1870/1/544, emanated from processes undertaken by its predecessor, the Commissioner of Lands. Its supporting affidavit by Abdulkadir Adan Khalif identified issues it could illuminate, including whether the land was transferred to the Defendant, whether the lease expired by effluxion of time, and whether the allocation to the Plaintiff was proper. The Plaintiff, through its director James Gichuki Wambugu, opposed, calling NLC an interloper and busy body, contending the properties are purely private land, challenging the deponent's capacity under Section 20(4) of the NLC Act, and alleging the application was made at the 1st Defendant's behest. In oral submissions NLC relied on Order 1 Rule 10(2) of the Civil Procedure Rules; the Plaintiff argued no Commissioner could swear an affidavit individually. The court allowed the application, joined NLC as the 3rd Defendant, directed it to file and serve pleadings and documents within 21 days, and ordered costs of the application to be in the cause. Ruling dated and delivered at Nairobi on 5th October 2018 by K. Bor, Judge.

Key legal issues

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01

Joinder of an interested party

Holding

NLC was joined as it had a stake in the proceedings, being custodian of records on alienation of government land from which the suit properties emanated.

Reasoning

NLC established that the suit properties emanated from processes of its predecessor, the Commissioner of Lands, and that its decision would be directly affected. Order 1 Rule 10(2) permits joinder of a person whose presence is necessary for effective and complete adjudication. The court found NLC's involvement necessary, overriding the plaintiff's objections that NLC was an interloper.

p. 2

Legal principles established

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  • A party whose involvement is necessary to enable the court effectually and completely adjudicate upon the issues in a suit ought to be joined under Order 1 Rule 10(2).

Court orders

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  1. 1.The application dated 19/2/2018 is allowed
  2. 2.NLC is added as the 3rd Defendant to the suit
  3. 3.NLC to file and serve its pleadings and documents within 21 days
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10 (2)
  • National Land Commission ActSection 20 (4)
Jurisdiction invoked
Order 1 Rule 10 (2) of the Civil Procedure Rules (joinder of interested party)

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, "Flash Audio Services Limited v Mbesa Limited & another [2018] KEELC 1425 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1425/eng@2018-10-05

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