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ELCAllowedELC Case of 2019 (Plaint dated 11th May, 2019); Application dated 13th March, 2020· [2020] KEELC 1018 (KLR)

Kelvin Mutua & 197 others v Athi Water Service Board; Katelembo Athiani Muputi Farming & Ranching Co-operative Society Limited (Intended Interested Party/Applicant) [2020] KEELC 1018 (KLR)

Environment and Land Court
9 October 2020
1,810 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A co-operative society holding original land allocation records was allowed to join a compensation lawsuit because deciding who deserves payment required its evidence.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos on a Notice of Application dated 13th March, 2020 in which Katelembo Ranching Co-operative Society Limited sought leave to join an ongoing suit as an Interested Party and to file a response to the Plaint. The underlying suit was instituted by 198 Plaintiffs seeking compensation for land in Katelembo, Machakos County, allegedly taken for the construction of the Miwongoni/Muwongoni Dam without compensation, and a permanent injunction restraining the Defendant from occupying the suit property. The Applicant deponed, through its Chairman Wilson Masila Muema, that it was registered under the Co-operative Societies Act in 1971, acquired L.R. No. 10253 on 9th February, 1972, allocated plots to its members, and holds the records identifying genuine allottees. The Plaintiffs opposed, disputing the deponent's office and the quality of the Society's records, and asserting that the suit concerned only compensation, not ownership. The court applied the two-limb test in Shirvling Supermarket Limited and Order 1 Rule 10(2) of the Civil Procedure Rules. It found the Plaintiffs had not denied the Applicant's original acquisition of the land or that they derived title through it or its members, and had themselves admitted controversy over allotments. Since entitlement to compensation had to be determined before quantum, and the Plaintiffs held no individual title deeds, the Applicant's presence was necessary. The application was allowed as prayed, with costs in the cause.

Key legal issues

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01

Test for joinder of an Interested Party

Holding

The Applicant must show an identifiable interest in the subject matter of the litigation or that it is a necessary party; its interest need not be one that must succeed at trial.

Reasoning

The court adopted the two-limb test from Shirvling Supermarket Limited: an identifiable interest in the subject matter, or necessity of the party's presence for complete adjudication. Applying Order 1 Rule 10(2), the Applicant's custody of the allocation records for the suit land, its admitted original acquisition of L.R. No. 10253 in 1972, and the Plaintiffs' own admission of controversy over allotments made its presence necessary to determine entitlement to compensation before quantum is considered.

p. 2
02

Whether the Applicant's presence was necessary on the facts

Holding

Yes - the Applicant is the original owner and custodian of the register of allottees, and the Plaintiffs do not hold individual title deeds, so its records are material to determining who is entitled to compensation.

Reasoning

The Plaintiffs did not deny that the suit property forms part of L.R. No. 10253 acquired by the Applicant in 1972, nor that they derived their occupation through the Applicant or its members. Their representative admitted complaints over allotments. Since entitlement to compensation must be settled before the payable amount, the Applicant's records, whether doctored or not, would be material.

p. 3

Legal principles established

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  • A party may be joined under Order 1 Rule 10(2) where its presence is necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit; the applicant must demonstrate an identifiable interest in the subject matter or necessary-party status.

Court orders

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  1. 1.The Intended Interested Party is granted leave to join the proceedings as an Interested Party and to file its response to the Plaint
  2. 2.The Application dated 13th March, 2020 is allowed as prayed

Authorities

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Legislation

  • Co-operative Societies ActCap 490
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Registration of Titles OrdinanceGrant for L.R. No. 10253

Cases cited (2)

  • Shirvling Supermarket Limited vs. Jimmy Ondicho Nyabuti & 2 others
    [2018] eKLR
  • Judicial Service Commission vs. Speaker of the National Assembly & Another
    (2013) eKLR
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules (joinder of necessary 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, "Kelvin Mutua & 197 others v Athi Water Service Board; Katelembo Athiani Muputi Farming & Ranching Co-operative Society Limited (Intended Interested Party/Applicant) [2020] KEELC 1018 (KLR)", Case Analysis (2020). ELC Case of 2019 (Plaint dated 11th May, 2019); Application dated 13th March, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1018/eng@2020-10-09

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