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ELCDismissedPetition No. 6 of 2018 (formerly HCCC No. 6 of 2018, Murang'a)· [2019] KEELC 3905 (KLR)

Ephantus Githae & another v National Land Commission & another; Del Monte Kenya Limited (Interested party) [2019] KEELC 3905 (KLR)

Environment and Land Court
4 April 2019
JKJ G Kemei
3,386 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 Notice of Motion under Articles 47 and 159 of the Constitution and Rule 7 of the Mutunga Rules in which the Applicant, the registered leaseholder of the suit lands whose leases from the Government of Kenya were due to expire in 2022 and whose renewal applications were pending before the Respondents, sought joinder as an interested party in a petition filed by residents of Muranga County. The petition challenged the process by which the Respondents were considering the lease renewals, alleging absence of public participation and access to information contrary to Articles 10, 60 and 65, and sought declarations that any further leasing be by public tender and that the ongoing renewal process be nullified. The 1st Petitioner and the 2nd Respondent opposed the joinder, arguing that the renewal process lay exclusively with the Respondents, that the Applicant's interest was purely private, that no substantive decision had been made, and that joinder would be preemptive and abusive. The court, applying Rule 2's definition of an interested party and the principles in Amon v Raphael Tuck, Muruatetu and Trusted Society of Human Rights Alliance, held that the Applicant had to show more than a reasonable stake: it had to prove that its presence was key to resolving the dispute, that the final orders could not be enforced without it, and the prejudice it would suffer. Ownership of the land was not under challenge; only the renewal process was, and the Applicant's interest was private, not public. The application was dismissed with costs.

Key legal issues

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01

Test for joinder of an interested party

Holding

The Applicant failed the test: it did not show that the petition's questions cannot be effectually and completely settled without it, nor any prejudice.

Reasoning

Applying Rule 2 of the Mutunga Rules definition, the court held that an interested party must have an identifiable stake or legal interest or duty in the proceedings. Ownership of the leasehold lands was not under challenge; the petitioners challenged only the process of lease renewal, which lies with the Respondents. The Applicant's interest was private, it would not frame fresh issues, and the final orders could be enforced against the Respondents without its presence.

p. 3
02

Whether the Applicant's private interest suffices where the petition concerns public participation in lease renewal

Holding

No; a private commercial interest does not make the Applicant a necessary or proper party to a petition alleging want of public participation and access to information.

Reasoning

The court distinguished ownership from the stake needed for joinder. The Applicant's ownership rights were admitted and not under challenge. Its concern about lease renewal is a private right it can pursue before the Respondents under section 13 of the Land Act. The court also rejected as speculative the Petitioner's claim that joinder would let the Applicant improperly influence the administrative process.

p. 4

Legal principles established

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  • A party seeking joinder as an interested party must demonstrate more than a reasonable stake; it must show that its presence is key to resolving the dispute, that final orders cannot be enforced without it, and the prejudice it would suffer.
  • An identifiable private-law ownership interest in the subject matter does not by itself establish the 'stake or interest' required for joinder as an interested party where the challenge is directed at a public decision-making process.

Court orders

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  1. 1.The Notice of Motion dated seeking joinder as an interested party is dismissed
  2. 2.Costs of the application awarded as stated in the judgment (recorded as 'with costs to the Applicant')

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 47, 60, 65, 159
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2 and 7
  • Land Act, Act No. 6 of 2012Section 13

Cases cited (5)

  • Shah Vs Mbogo
    (1979) EA 116
  • Amon –Vs- Raphael Tuck & Sons Ltd
    (1956) 1 All ER 273
  • Kenya Medical Laboratory Technicians and Technologists Board & 6 others Vs AG & 4 others
    (2017) EKLR
  • Francis Karioki Muruatetu & Another v. Republic & 5 others
    Sup. Ct. Pet. 15 & 16 of 2015 (consolidated); [2016] eKLR
  • Trusted Society of Human Rights Alliance-Vs- Mumo Matemo & 5 others
    [2014] Eklr
Jurisdiction invoked
Articles 47 and 159 of the Constitution of Kenya, 2010 and Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Ephantus Githae & another v National Land Commission & another; Del Monte Kenya Limited (Interested party) [2019] KEELC 3905 (KLR)", Case Analysis (2019). Petition No. 6 of 2018 (formerly HCCC No. 6 of 2018, Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3905/eng@2019-04-04

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