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ELCPartially AllowedMombasa ELC (suit number not stated in extract; ruling on notice of motion dated 5th December 2016)· [2018] KEELC 3171 (KLR)

Martin Chiponda & 860 others v Mohamood Kassam & 13 others [2018] KEELC 3171 (KLR)

Environment and Land Court
25 May 2018
1,617 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Mombasa court allowed two state land bodies to join a land dispute but refused to add private claimants or merge cases from other courts.

What this practically means

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Executive summary

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This is a ruling by A. Omollo J of the Environment and Land Court, Mombasa, delivered on 25th May 2018 on a notice of motion dated 5th December 2016 by the plaintiffs, grounded on sections 1A and 3A of the Civil Procedure Act and Orders 1, 8 and 51 of the Civil Procedure Rules. The plaintiffs sought joinder of Fatma Ali Abdalla and Mohamed Abdalla Mandhry (reputed owners of undivided shares of plot 818/II/MN), the Land Settlement Fund Board of Trustees and the National Land Commission; leave to amend the plaint; and consolidation of the suit with several other matters concerning plots 324, 382, 817, 818 and 819 of Section II Mainland North, including a High Court constitutional petition, two ELC suits, a magistrates' civil suit and three Shanzu criminal cases. The 1st–4th defendants opposed, arguing the new parties had no interest in the suit plot, that the High Court petition lay in a court of distinct jurisdiction, and that criminal and civil cases cannot be consolidated. The court refused joinder of the two private individuals because their interest in plot 819 was not disclosed, but allowed joinder of the two public bodies, which was unopposed. It refused all consolidation: CMCC 1686 of 2016 had been terminated in judicial review; the petition required transfer; ELC 298 of 2013 had been dismissed under Order 17 rule 4; and the ELC lacks criminal jurisdiction. The application succeeded in part, with leave to amend limited to the joinder granted, the amended plaint to be filed and served within 14 days, and each party to bear their own costs.

Key legal issues

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01

Joinder of parties claiming an interest in other land

Holding

Refused; the proposed defendants' interests relate to plot 818, not the suit plot 819, and must be pursued in a separate action

Reasoning

Order 1 rule 19(2) prescribes who may be added as a party. The applicants pleaded that the two individuals own undivided shares of plot 818/II/MN, whereas the subject matter of this suit is plot 819/II/MN. No interest of theirs in plot 819 was disclosed, so joinder was unwarranted and any claim against them requires a separate suit.

p. 2
02

Joinder of public bodies

Holding

Allowed as against the Land Settlement Fund Board of Trustees and the National Land Commission since no opposition was filed to that prayer

Reasoning

The two institutions were sought to be joined in their capacities as government institutions charged with land settlement and land administration functions. The defendants opposed the application generally but filed no opposition directed at this prayer, so the court granted it to the extent of joining only these two bodies.

p. 2
03

Consolidation of suits in different courts

Holding

Refused in respect of the High Court petition and the criminal cases; a court cannot consolidate matters not properly before it or outside its jurisdiction

Reasoning

The High Court and the Environment and Land Court have distinct jurisdiction, so the petition must first be transferred. Criminal and civil proceedings are governed by different regimes and the ELC lacks criminal jurisdiction; moreover the criminal cases are pending in a subordinate court and cannot be consolidated absent a transfer.

p. 2
04

Consolidation with a dismissed suit

Holding

Refused; ELC 298 of 2013 was dismissed on 4th November 2014 under Order 17 rule 4 and consolidation cannot revive it

Reasoning

The respondents deposed, with an annexed order marked 'M3b', that ELC 298 of 2013 was dismissed on 4th November 2014. The applicants did not deny the order but argued res judicata could not apply. The court held that a dismissed suit cannot be revived by consolidation without following the proper channel.

p. 2

Legal principles established

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  • A party may only be added to a suit where a legally protectable interest in the subject matter of that suit is disclosed; a claim concerning different land calls for a separate cause of action
  • A court cannot consolidate a file pending in another court of distinct or concurrent jurisdiction unless that file is first transferred to it
  • A suit dismissed under Order 17 rule 4 cannot be revived by an order of consolidation
  • The Environment and Land Court has no jurisdiction to hear and determine criminal cases, and criminal and civil proceedings cannot be consolidated

Court orders

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  1. 1.The Land Settlement Fund Board of Trustees and the National Land Commission are joined as parties to the suit
  2. 2.Leave to amend the plaint is granted but limited to the joinder of those two parties
  3. 3.The amended plaint joining the two parties be filed within 14 days of delivery of the ruling and served as provided under Order 5 of the Civil Procedure Rules
  4. 4.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure Actsections 1A and 3A
  • Civil Procedure Actsections 6 and 7
  • Civil Procedure RulesOrder 1 Rule 10; Order 1 rule 19(2); Order 8 rules 3 & 5; Order 17 rule 4; Order 51; Order 5
  • Land Act (as amended by section 90 of Act No. 28)section 135, including section 135(1)(c)
  • Criminal Procedure Codenot specified
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act (Cap 21) and Order 1 Rule 10, Order 8 rules 3 & 5 and Order 51 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Martin Chiponda & 860 others v Mohamood Kassam & 13 others [2018] KEELC 3171 (KLR)", Case Analysis (2018). Mombasa ELC (suit number not stated in extract; ruling on notice of motion dated 5th December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3171/eng@2018-05-25

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