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ELCAllowedMombasa ELC Petition (Judicial Review) suit re: Plot No.287 Section V / MN/V/1948; applicant seeks joinder in petition by Freedom Limited· [2020] KEELC 1154 (KLR)

Freedom Limited v Director of Survey & 2 others; Omar Awdh Mbarak (Intended Interested Party) [2020] KEELC 1154 (KLR)

Environment and Land Court
22 September 2020
CYC.K. Yano
976 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Mombasa allowed a man claiming ownership of disputed land to join an ongoing case as an interested party.

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 Mombasa on a Notice of Motion dated 29 January 2020 by Omar Awadh Mbarak, the Intended Interested Party, seeking to be enjoined as an interested party in a petition brought by Freedom Limited. The application was brought under Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The applicant claimed ownership of the suit property as legal heir of his late grandfather, who purchased it in 1978, and annexed a court order, title deed and transfer. He noted a pending related suit, Mombasa ELC No. 358 of 2016 (Freedom Limited v Omar Awadh Mbarak), and objected to the petitioner obtaining sealed Deed Plans while he held the original ones. The petitioner opposed through grounds of opposition, arguing the application was frivolous, an abuse of process, founded on perjured evidence and material non-disclosure, and that the applicant lacked locus over the subject property, whose annexures were fraudulently procured and subject to an ongoing criminal case. Only the applicant filed submissions. Applying Order 1 Rule 10(2), the court held the applicant had demonstrated an interest in the suit property and that, given the pending related case and the land nature of the dispute, joinder was merited. The application was allowed, with the applicant enjoined as an interested party, directions on service and filing of responses, and costs in the cause.

Key legal issues

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01

Joinder of an interested party in a land petition

Holding

The application for joinder was allowed because the applicant demonstrated an interest in the suit property and its outcome would directly affect him

Reasoning

The court applied Order 1 Rule 10(2), which permits joinder of any person whose presence is necessary for the court to effectually and completely adjudicate on all questions in the suit. The applicant exhibited a title deed and transfer claiming ownership as heir of the purchaser of the suit property, and there was a pending suit between the same parties over the same subject matter. Being a land matter, the applicant's demonstrated proprietary interest made his presence necessary. Costs were left to the cause.

p. 2

Legal principles established

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  • The court has discretion under Order 1 Rule 10(2) to add a person whose presence is necessary to enable it effectually and completely adjudicate upon all questions in the suit

Court orders

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  1. 1.The applicant, Omar Awadh Mbarak, is enjoined in the proceedings as an interested party
  2. 2.The petitioner to serve the interested party with the petition within fourteen (14) days from the date of the ruling
  3. 3.The interested party to file and serve his response to the petition within fourteen (14) days of service of the petition
  4. 4.The petitioner to file a supplementary affidavit, if any, in respect to the interested party's response, whereafter the matter proceeds for pre-trial directions
  5. 5.Costs of the application to be in the cause
Jurisdiction invoked
Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A 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, "Freedom Limited v Director of Survey & 2 others; Omar Awdh Mbarak (Intended Interested Party) [2020] KEELC 1154 (KLR)", Case Analysis (2020). Mombasa ELC Petition (Judicial Review) suit re: Plot No.287 Section V / MN/V/1948; applicant seeks joinder in petition by Freedom Limited. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1154/eng@2020-09-22

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