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ELCPartially AllowedSuit dated 6th June 2019 (ELC Machakos)· [2020] KEELC 1019 (KLR)

Jeremiah Mbithi & 13 others v Athi Water Service Board; County Government of Machakos & another (Intended Interested Parties) [2020] KEELC 1019 (KLR)

Environment and Land Court
9 October 2020
OAO.A. Angote
1,904 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 ruled that the Machakos County Government and Tanathi Water Works Agency must join a land compensation case over the Miwongoni Dam project.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (O.A. Angote, J) determined a Notice of Motion dated 3rd February 2020 in which the Defendant, the National Land Commission, sought leave to further amend its Defence and to join the Machakos County Government and the Tanathi Water Works Development Agency as interested parties. The underlying suit, commenced by Plaint dated 6th June 2019, is brought by landowners in Kathekakai area, Machakos County, who claim they were never compensated for their land earmarked for the Miwongoni River Dam Project under the Machakos Water and Sanitation Design and Build Project, and seek a permanent injunction restraining the Defendant from occupying the suit property. The Defendant argued that the project would be handed over to the Tanathi Water Works Development Agency and that the County Government, under whose jurisdiction the project falls, would be a beneficiary and could assist in resolving land disputes. The Plaintiffs opposed, contending that the sole issue was compensation and that the intended parties were neither privy to the contracts nor affected by the outcome. The court applied the joinder test from Shirvling Supermarket Limited and Order 1 Rule 10(2) of the Civil Procedure Rules. Noting that water and sanitation services are devolved under the Fourth Schedule of the Constitution and that Water Works Development Agencies have statutory mandates under Section 68 of the Water Act, 2016, the court found the intended parties closely connected to the impugned project and necessary for complete adjudication. The application was allowed: the two entities were joined as Defendants, with each party bearing its own costs.

Key legal issues

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01

Joinder of interested parties

Holding

The Intended Interested Parties are closely connected to the impugned project and should be included as Defendants because the provision of water and sanitation is devolved to County Governments and Water Works Agencies have a statutory mandate under the Water Act, 2016

Reasoning

The court considered Order 1 Rule 10(2) of the Civil Procedure Rules and the requirement of an identifiable stake. Under Schedule Four of the Constitution, water and sanitation services are devolved to County Governments. Under the Water Act, 2016, Water Works Development Agencies manage water works until handover to County Governments. The Miwongoni Dam project's success or failure would directly affect both bodies in meeting their constitutional obligations, making their presence necessary for complete adjudication.

p. 4

Legal principles established

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  • For a party to be enjoined, their presence must be necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit, and they must demonstrate an identifiable interest in the subject matter
  • The test for joinder of an interested party is an identifiable interest in the subject matter or that the applicant is a necessary party for complete adjudication

Court orders

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  1. 1.The Machakos County Government and the Tanathi Water Works Development Agency be joined in this suit as Defendants
  2. 2.Each party to bear his/its own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 15; Order 8 Rule 5(1); Order 1 Rule 10(2)
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Land ActSection III
  • National Commission ActSections 5 and 6
  • Constitution of KenyaFourth Schedule
  • Water Act, 2016Section 68

Cases cited (3)

  • Pravin Bowry vs. John Ward & Another
    (2015) eKLR
  • Judicial Service Commission vs. Speaker of the National Assembly & Another
    (2013) eKLR
  • Shirvling Supermarket Limited vs. Jimmy Ondicho Nyabuti & 2 others
    [2018] eKLR
Jurisdiction invoked
Order 1 Rule 10(2) and Order 1 Rule 15, Order 8 Rule 5(1) of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

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, "Jeremiah Mbithi & 13 others v Athi Water Service Board; County Government of Machakos & another (Intended Interested Parties) [2020] KEELC 1019 (KLR)", Case Analysis (2020). Suit dated 6th June 2019 (ELC Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1019/eng@2020-10-09

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