Hadiya Construction & Mineral Ltd v Ajabu East Africa Ltd & 27 others [2018] KEELC 2482 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed landowners to join a case over leased land, confirming their rights revive when the lease ends.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was barred by the sub judice rule (Section 6, Civil Procedure Act)
The matter is not sub judice because the plaintiff in this suit is not a party to the Kakamega suit; the two matters may require consolidation instead
Section 6 bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties claiming under the same title. On perusal of the pleadings in Kakamega ELC No. 281 of 2017 (now No. 514 of 2018), the court found the plaintiff herein is not party to that suit, so the rule does not apply; consolidation was suggested as the appropriate course.
Whether the intended interested parties satisfied the Muruatetu criteria for joinder
Yes, save for the deceased 9th applicant; their reversionary beneficial interest under the lease is identifiable and proximate
Applying the Muruatetu elements as quoted in the Raila Amolo Odinga case, the court held that enjoinment is discretionary and requires an identifiable, proximate interest, demonstrated prejudice, and distinct submissions. Because the parcels were leased and not sold, the applicants' beneficial interest reverts on expiry of the lease, making it proximate; only the deceased 9th applicant is excluded.
Legal principles established
#- Enjoinment as an interested party is not as of right but at the discretion of the Court, requiring the personal interest to be clearly identifiable and proximate, prejudice from non-joinder to be demonstrated, and the intended submissions to be set out and not merely a replication of other parties' cases
- A matter is not sub judice under Section 6 of the Civil Procedure Act where a party to the present suit is not party to the previously instituted suit
- A lessee retains beneficial or reversionary interest in leased land sufficient to found joinder where the lease, not a sale, was effected
Court orders
#- 1.The application to enjoin the interested parties is granted as prayed, with the exclusion of the 9th applicant who is deceased
- 2.Costs to be in the cause
- 3.The matter is transferred to the Chief Magistrate Kakamega Court handling a similar matter for hearing and determination
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act and Order 1 Rule 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hadiya Construction & Mineral Ltd v Ajabu East Africa Ltd & 27 others [2018] KEELC 2482 (KLR)", Case Analysis (2018). Application dated 23rd March 2018 (ELC suit, Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2482/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.