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ELCDismissedChamber Summons dated 11th October, 2018 (Eldoret ELC suit, parties: Plaintiff v 1st–5th Defendants)· [2020] KEELC 292 (KLR)

Endo Holdings Limited v Sammy Kiprotich Tangus & 4 others [2020] KEELC 292 (KLR)

Environment and Land Court
16 December 2020
SKS. M. Kibunja
760 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 ruled a county government must stay in a land dispute because it inherited the old council's obligations under devolution.

What this practically means

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Executive summary

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The 4th Defendant, by Chamber Summons dated 11th October 2018 supported by the affidavit of Nelly Jerotich (Ag. Chief Officer), sought to have its name struck out from the suit, contending it was a stranger to the Plaintiff's cause of action, that the pleaded fraud touched only the 1st to 3rd Defendants, and that the joinder was an abuse of court process. The application was opposed by the 3rd and 5th Defendants through grounds of opposition dated 28th July 2020, and by the Plaintiff through grounds of opposition dated 1st October 2020, both contending that the 4th Defendant's role in the cause of action was paramount and that striking it out would occasion a miscarriage of justice; the Plaintiff relied on Order 1 of the Civil Procedure Rules, and the 3rd and 5th Defendants invoked D. T. Dobie Kenya Co. Ltd v Joseph Mbaria Muchina & Another. Written submissions were filed by the Plaintiff and the 4th Defendant; the 3rd and 5th Defendants' submissions, though said to have been filed, were never traced on the record. Framing two issues - whether the 4th Defendant is a necessary party, and costs - the court found that paragraphs 5 to 10 of the Amended Plaint disclose the 4th Defendant's nexus to the suit land, and that the Plaintiff's documents include 1995 letters, a receipt and a Kshs.150,000 cheque from the County Council of Wareng, which the 4th Defendant inherited upon devolution under the Constitution 2010. The 4th Defendant was therefore a necessary party. The Chamber Summons was dismissed with costs to the Plaintiff and the Defendants, with a direction for digital transmission of the ruling.

Key legal issues

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01

Whether the 4th Defendant is a necessary party to the suit

Holding

Yes. The Amended Plaint pleads a nexus between the 4th Defendant and the suit land, and documents show payments to its predecessor, the County Council of Wareng.

Reasoning

The court examined paragraphs 5, 6, 7, 8 and 10 of the Amended Plaint dated 20th August, 2018 which showed the 4th Defendant's nexus to the suit land. It further noted the Plaintiff's list of documents dated 2nd June 2015 containing letters from the County Council of Wareng of 1995, a miscellaneous receipt and a cheque of Kshs.150,000 paid to that Council. Since the 4th Defendant inherited the County Council of Wareng upon devolution under the Constitution 2010, it is a necessary party for final determination of the issues.

p. 2

Legal principles established

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  • A party whose acts are pleaded as forming the nexus to the cause of action, including a successor entity to a former local authority, is a necessary party and should not be struck out.

Court orders

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  1. 1.The 4th Defendant's Chamber Summons dated 11th October, 2018 is dismissed with costs to the Plaintiff and the Defendants
  2. 2.The Ruling is to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses

Authorities

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Legislation

  • Civil Procedure RulesOrder 1
  • Constitution of Kenya, 2010devolution provisions (generally)

Cases cited (1)

  • D. T. Dobie Kenya Co. Ltd Vs Joseph Mbaria Muchina & Leah Wanjiku Mbugua
    (1982) KLR 1
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Civil Procedure Rules (Order 1 on parties) invoked by the parties

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, "Endo Holdings Limited v Sammy Kiprotich Tangus & 4 others [2020] KEELC 292 (KLR)", Case Analysis (2020). Chamber Summons dated 11th October, 2018 (Eldoret ELC suit, parties: Plaintiff v 1st–5th Defendants). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/292/eng@2020-12-16

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