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ELCDismissedNotice of Motion dated 20th June 2018 (in Originating Summons dated 15th August 2016)· [2019] KEELC 1619 (KLR)

Abdalla Ali Abdulrhaman v Minister of Lands, Planning Mombasa County & 5 others; Mahmood Haiderlu Khimji & another (Interested Parties) [2019] KEELC 1619 (KLR)

Environment and Land Court
26 September 2019
CYC. K. Yano
1,964 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 refused to join tenants to a land dispute and rejected their delayed request to review earlier orders, with costs.

What this practically means

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Executive summary

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The intended 3rd to 7th interested parties, claiming to be tenants and lessees on Mombasa/Block XVI/108, applied by Notice of Motion dated 20th June 2018 under Sections 3A and 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 to be enjoined as interested parties, to stay execution of orders made on 15th June 2017 and issued on 23rd June 2017 closing their access road, to have those orders reviewed, set aside and vacated, and to be allowed continued use of the access road through Mombasa/Block XVI/107. They asserted they had used the road since 2002, only learned of the proceedings around 6th February 2018, and that executing the orders would infringe their rights to fair treatment, liberty and human dignity without a hearing. The 1st and 2nd interested parties filed a preliminary objection characterising the application as misconceived, an abuse of process, and the applicants as busybodies without capacity or interest. Applying Order 1 Rule 10(2) and Joseph Leboo, C. K. Yano J held the applicants were not necessary parties: as persons claiming tenancy since 2002 they must have known of the suit, including the Land Registrar's site visit and report, making the application an afterthought; their rights were adequately covered by the premises' owner, and joinder would embarrass and delay the suit. On review, the one-year delay was inordinate and unexplained, no new and important matter or error on the face of the record was shown, and with joinder refused the review could not issue. The stay was likewise unmerited. The motion was dismissed with costs to the 1st and 2nd interested parties.

Key legal issues

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01

Whether the intended interested parties should be joined

Holding

Joinder refused; they are not necessary parties

Reasoning

Applying Order 1 Rule 10(2) and Joseph Leboo, the court held that the applicants, claiming to be tenants since 2002, must have known of the suit given the Land Registrar's site visit and report, so the application was an afterthought. Their rights can be adequately covered by the owner of the premises, and joinder would embarrass and delay finalisation of the suit.

p. 3
02

Whether the orders of 15th June 2017 should be reviewed and set aside

Holding

Review refused

Reasoning

The application was filed about one year after the order, an inordinate delay with no explanation. The applicants, having failed to secure joinder, cannot obtain review; the reasons given were unconvincing, no new and important matter or evidence was produced, and no error on the part of the court was shown. The stay application also failed.

p. 3

Legal principles established

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  • Review under Section 80 of the Civil Procedure Act and Order 45 is limited to discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and must be made without unreasonable delay
  • An application for review made after inordinate and unexplained delay fails
  • The court has discretion to add a person whose presence is necessary to enable it completely adjudicate on all questions in the suit

Court orders

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  1. 1.The notice of motion dated 20th June 2018 is dismissed
  2. 2.Costs of the application awarded to the 1st and 2nd Interested Parties

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Civil Procedure RulesOrder 40
  • Civil Procedure RulesOrder 51(1)
  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (1)

  • Joseph Leboo & 2 Others –v- Director of Forest Service & Another
    (2013) eKLR
Jurisdiction invoked
Sections 3A and 80 of the Civil Procedure Act; Order 45 Rules 1 and 2, Order 40, Order 51(1) and Order 1 Rule 10(2) of the Civil Procedure 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, "Abdalla Ali Abdulrhaman v Minister of Lands, Planning Mombasa County & 5 others; Mahmood Haiderlu Khimji & another (Interested Parties) [2019] KEELC 1619 (KLR)", Case Analysis (2019). Notice of Motion dated 20th June 2018 (in Originating Summons dated 15th August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1619/eng@2019-09-26

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