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ELCPartially AllowedNotice of Motion dated 10th December 2018 (ELC, Kericho)· [2019] KEHC 9155 (KLR)

Bomet Technical Institute Limited t/a Lomu Investments v Maritim & 21 others; County Government of Bomet (Interested Party) [2019] KEHC 9155 (KLR)

Environment and Land Court
14 March 2019
JOJ.M Onyango
2,095 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed Bomet County to join a land ownership case as an interested party, because public land history was essential to deciding who owns the plot.

What this practically means

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Executive summary

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This Environment and Land Court decision at Kericho by J.M Onyango determined a Notice of Motion dated 10 December 2018 in which the County Government of Bomet sought to be enjoined in an ongoing trespass and ownership dispute over plot No. BOMET TOWNSHIP/270, either as Defendant or Interested Party. The Applicant, through Oscar Sang, Director of Legal Services, argued it is trustee and lessor of public land in the county and custodian of records showing the plot was allocated to the Permanent Secretary to the Treasury as trustee for St. Michael Primary School. The Plaintifi opposed, contending the land is private, that protection of public land lies with the Attorney General under Article 156(4), that no sufficient reason for joinder was shown, and that the application is res judicata given prior litigation (Kericho ELC Judicial Review No. 14 of 2012, Kericho ELC JR No. 16 of 2012 and Kisii ELC No. 428 of 2013). The court framed one issue: whether the Applicant should be enjoined. Applying Order 1 Rule 10(2) of the Civil Procedure Rules, the court held that ownership must be resolved before trespass can be determined, and since the plot was originally public land vested in the county, the county's presence was necessary for complete adjudication. Res judicata failed because prior suits involved different parties. Relying on Article 159(2)(d) and the overriding objective, the court allowed joinder as an Interested Party only, granted the Plaintifi 14 days to amend pleadings and effect service, allowed the Interested Party 14 days thereafter to file documents, and ordered costs in the cause.

Key legal issues

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01

Whether the County Government of Bomet should be enjoined as an interested party or defendant

Holding

Joinder allowed as an interested party because the suit property was originally public land vested in the county and its presence is necessary for complete adjudication on ownership.

Reasoning

The core issue in the suit is ownership of plot BOMET TOWNSHIP/270. The plot was originally Unsurveyed Educational Plot No. "A" Bomet, hence public land vested in the County Government under Article 62/162 framework. The county can explain how the land moved from public to private hands. Under Order 1 Rule 10(2) and Article 159(2)(d), joinder serves the overriding objective; a separate suit would duplicate proceedings.

p. 4
02

Whether the application is res judicata

Holding

No - the prior suits had different parties despite the same subject matter.

Reasoning

Kericho ELC Judicial Review No. 14 of 2012 was between Bomet Technical Institute and land officials; Kisii ELC No.428 of 2013 was between St. Michael's Primary School and the Plaintifi. The County Government was not a party, so res judicata cannot apply notwithstanding the same subject matter.

p. 4

Legal principles established

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  • A court has discretion to enjoin a party whose presence is necessary to enable it effectually and completely adjudicate upon all questions in a suit.
  • Res judicata requires identity of parties as well as subject matter.

Court orders

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  1. 1.The County Government of Bomet is enjoined in the suit as an Interested Party
  2. 2.The intended party is allowed to amend the pleadings to reflect the interested party
  3. 3.The Plaintifi is granted 14 days to amend the pleadings to include the Interested Party and effect service upon them
  4. 4.Thereafter the Interested Party shall file its documents within 14 days
  5. 5.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10 (2)
  • Constitution of KenyaArticle 156(4)
  • Constitution of KenyaArticle 159 (2) (d)
  • Constitution of KenyaArticle 162 (2)
  • Civil Procedure Actoverriding objective

Cases cited (5)

  • Pius Mbugua Ngugi & 2 others v Chief Land Registrar & 7 others
    [2018] eKLR
  • Kenya Medical Laboratory Technicians and Technologists Board & 6 Others v Attorney General
    (2017) eKLR
  • Nasela and Mukakaik Ltd v Urban Roads Authority & 3 Others
    2017 eKLR
  • Deported Asians Property Custodian Board V Jaffer Brothers Limited
    (1999) E.A 55 (SCU)
  • Pravin Bowry v John Ward and Another
Jurisdiction invoked
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, "Bomet Technical Institute Limited t/a Lomu Investments v Maritim & 21 others; County Government of Bomet (Interested Party) [2019] KEHC 9155 (KLR)", Case Analysis (2019). Notice of Motion dated 10th December 2018 (ELC, Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5115/eng@2019-03-14

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