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ELCDismissedNotice of Motion dated 8th December, 2014 (in a Petition)· [2018] KEELC 3501 (KLR)

Charles Owour Owino & 5 others v Director of Surveys & 7 others [2018] KEELC 3501 (KLR)

Environment and Land Court of Kenya
20 April 2018
OAO.A. Angote
721 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The Land Court in Machakos refused to add 36 people to an existing land petition, telling them to file their own case instead.

What this practically means

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Executive summary

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By a Notice of Motion dated 8th December, 2014, filed under Rule 5(c) of the Mutunga Rules, 36 intended Petitioners, led by Charles Owuor Owino, sought to be enjoined as Petitioners in a pending Petition concerning plots at Konza market. They asserted ownership of the plots, claimed to be affected by the Respondents' illegal acts, and explained that they had not raised enough resources to be included when the Petition was filed. They further stated the market was surveyed before 2011 and they awaited issuance of title deeds. Respondents Nos. 5 to 8 opposed, contending the applicants had not disclosed any documented interest such as letters of allotment. Intended Petitioners Nos. 6, 14, 19, 26 and 33 also opposed, disowning the authority, claiming they were cheated into signing it in the hope of being allocated land, and asking that their names be expunged. The court held that the ground advanced - lack of resources at commencement - does not fall within the grounds for adding a party under Rule 5(c) of the Mutunga Rules, and that the repudiation by some intended Petitioners worsened the application. The court advised the applicants to lodge their own petition, which could then be consolidated with the pending one. The Motion dated 8th December, 2014 was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the intended Petitioners qualified for joinder under Rule 5(c) of the Mutunga Rules

Holding

The application failed because the ground advanced (insufficient resources at commencement of the Petition) is outside the scope of Rule 5(c), and five of the intended Petitioners repudiated the authority, seeking their names be expunged.

Reasoning

Rule 5(c) permits substitution or addition of a petitioner only where proceedings were instituted in the name of the wrong person, in good-faith mistake, and it is necessary for determining the dispute. The applicants' reason of lacking resources at commencement does not fall within these grounds. Further, the application was undermined by the renouncement of the authority by intended Petitioners Nos. 6, 14, 19, 26 and 33, who said they were cheated into signing. The proper course is for the applicants to lodge their own petition and seek consolidation.

p. 2

Legal principles established

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  • A party seeking to be added to a petition under Rule 5(c) of the Mutunga Rules must satisfy the grounds for substitution/addition set in that rule; lack of resources at commencement is not such a ground.

Court orders

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  1. 1.The Notice of Motion dated 8th December, 2014 is dismissed.
  2. 2.Each party to bear his own costs.

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 5(c)
Jurisdiction invoked
Rule 5(c) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)

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, "Charles Owour Owino & 5 others v Director of Surveys & 7 others [2018] KEELC 3501 (KLR)", Case Analysis (2018). Notice of Motion dated 8th December, 2014 (in a Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3501/eng@2018-04-20

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