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ELCDismissedNot stated in judgment (notice of motion dated 5th July 2017)· [2018] KEELC 4856 (KLR)

Mombasa Cement Limited v Salim Masoud Abdalla & 2 Others [2018] KEELC 4856 (KLR)

Environment and Land Court
16 January 2018
1,717 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 5th July 2017 in which six applicants, members of the Mazrui Community (Development and Welfare) Wakf Lands Trust, sought to be enjoined as interested parties in a suit brought by Mombasa Cement Limited against five defendants sued as trustees of the Wakf. The plaintiff claimed it had leased 1000 acres of the suit land from the trustees pursuant to the Trust Deed, paid the consideration in full, and was entitled to quiet possession. The applicants, asserting they were elected as new trustees on 7th May 2017 and were also beneficiaries of the Wakf, sought joinder to oppose the alleged illegal lease, invoking Order 40 rules 10(2) and 14, Order 51 rule 1 and Section 3A of the Civil Procedure Act. The plaintiff opposed, arguing the application was defective and would conflict with an injunction in HCCC No. 55 of 2017 barring the applicants from acting as trustees; the 3rd and 4th defendants, long-serving trustees, also opposed, exhibiting the Trust Deed authorising leases. Justice C. Yano held that the applicants' pleadings contradicted their claim to sue only as beneficiaries, since they asserted they were duly elected trustees - a matter pending in HCCC No. 55 of 2017. The plaintiff's cause of action rested on a contract with the trustees it had itself sued, and the applicants were not necessary parties. Applying Joseph Leboo v Director Kenya Forest Services, the court emphasised caution in joining parties not chosen by the plaintiff. The motion was dismissed with each party bearing its own costs, delivered at Mombasa on 16th January 2018.

Key legal issues

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01

Whether the applicants, as alleged beneficiaries of the Wakf, are necessary parties to the plaintiff's lease dispute with the trustees

Holding

The application for joinder was dismissed; the applicants' interest in the suit property did not make them necessary parties to the contract-based claim.

Reasoning

The court held that the plaintiff's cause of action arises from a lease contract entered into with the trustees, whom the plaintiff sued as the recognized trustees and representatives of the community. Although the applicants claimed to seek joinder as beneficiaries, their first ground asserted they were duly elected trustees, contradicting their pleadings; parties are bound by their pleadings. Their trustee dispute was already before the High Court in HCCC No. 55 of 2017, and any claim as beneficiaries lay in another court, not in this suit.

p. 3
02

Caution in ordering joinder of a party not chosen by the plaintiff

Holding

The court adopted the principle that the choice of whom to sue belongs to the plaintiff and should not be disturbed absent compelling reasons.

Reasoning

Relying on Joseph Leboo v Director Kenya Forest Services, the court held that where a plaintiff objects to the joinder of a party, the court must exercise caution and be satisfied that the remedy sought is directed against the party sought to be enjoined, or that the proceedings cannot properly be conducted without them. The plaintiff's remedy was directed at the sued trustees, so joinder of the applicants was unnecessary.

p. 3

Legal principles established

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  • A party seeking joinder must show that the remedy sought in the proceedings is directed against them, or that the proceedings cannot properly be conducted without them.

Court orders

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  1. 1.The notice of motion dated 5th July 2017 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 10(2)
  • Civil Procedure RulesOrder 40 rule 14
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 1 rule 3
  • Community Land ActNot specified

Cases cited (1)

  • Joseph Leboo & 2 others -V- Director Kenya Forest Services & Anor
    [2013] eKLR
Jurisdiction invoked
Order 40 rules 10(2) and 14, Order 51 rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Mombasa Cement Limited v Salim Masoud Abdalla & 2 Others [2018] KEELC 4856 (KLR)", Case Analysis (2018). Not stated in judgment (notice of motion dated 5th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4856/eng@2018-01-16

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