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ELCPartially AllowedELC No. 78 of 2019 (with the two Notices of Motion dated 5th November, 2019)· [2020] KEELC 3487 (KLR)

Leseru Tebeson Farmers Society v Chief Registrar of Titles, Nairobi & another [2020] KEELC 3487 (KLR)

Environment and Land Court
5 February 2020
1,633 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 set aside an order won by default because the farmer's society sued the Government without involving the Attorney General or disclosing an earlier related case.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Eldoret (S. M. Kibunja, J) determines two Notices of Motion dated 5th November 2019 filed for the Attorney General following an unopposed order of 24th October 2019 lifting restrictions registered against L.R. No. 27206/3 and 27206/4 in Uasin Gishu County. The first application sought leave for the Attorney General to come on record for the Chief Registrar of Titles, setting aside of the 24th October order and leave to file a replying affidavit; the second sought joinder of the Ministry of Defence as interested party and striking out of the Applicant's Motion. The court framed three issues: whether the Attorney General made out a case for setting aside; whether the Ministry of Defence is a necessary party; and costs. It held that Section 12(1) of the Government Proceedings Act mandatorily requires civil proceedings against Government to be instituted by or against the Attorney General, yet the Applicant had neither enjoined nor served him. It also found the Applicant failed to disclose the pendency of Eldoret ELC No. 23 of 2019 over the same parcels, in which the Ministry of Defence and the Attorney General are defendants. The court allowed both applications, reviewed and set aside the 24th October 2019 order, granted leave for the Attorney General to come on record and reply within fourteen days, enjoined the Ministry of Defence as interested party, and ordered costs of the two applications to be in the cause.

Key legal issues

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01

Non-joinder of the Attorney General in civil proceedings against Government offices

Holding

The proceedings were fatally defective as the Applicant neither enjoined the Attorney General nor served him, contrary to Sections 12(1) and 13 of the Government Proceedings Act.

Reasoning

Section 12(1) of the Government Proceedings Act requires civil proceedings by or against the Government to be instituted by or against the Attorney General, in mandatory terms. The Chief Registrar of Titles is a Government office and the NLC Chairman heads an independent commission under Article 248(2). The Applicant failed to enjoin or serve the Attorney General in the Motion of 24th September 2019, breaching mandatory provisions.

p. 2
02

Non-disclosure of a pending suit over the same subject matter

Holding

The Applicant failed to disclose Eldoret ELC No. 23 of 2019, in which it is plaintiff over the same parcels L.R. No. 27206/3 and 4, a material omission.

Reasoning

Eldoret ELC No. 23 of 2019 exists with the Applicant as plaintiff and the 2nd Respondent as 1st Defendant, the other defendants being the Chief Land Registrar, Kenya National Highway Authority, Ministry of Defence and the Attorney General. Its subject matter is the same two parcels and it seeks a declaration confirming ownership. The Applicant did not disclose this pending suit in these proceedings.

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03

Joinder of the Ministry of Defence as an interested party

Holding

The Ministry of Defence is a necessary party given its interest shown in Eldoret ELC No. 23 of 2019 and its application to participate.

Reasoning

The Ministry appears as 4th Defendant in Eldoret ELC No. 23 of 2019 and has indicated its interest in participating as an interested party. Since the Attorney General was also not enjoined, and the court must deal with the issues exhaustively, joinder of the Ministry as interested party was warranted.

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04

Setting aside the order of 24th October, 2019

Holding

The order, granted unopposed, ought to be set aside to allow the Attorney General to come on record and the Ministry of Defence to be enjoined.

Reasoning

Though review should ordinarily be before the judge who made the order, that judge directed the applications to this court. Given the non-compliance with the Government Proceedings Act, non-disclosure of the related suit and the need for proper parties, the unopposed order of 24th October 2019 lifting the restrictions was set aside on review.

p. 2

Legal principles established

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  • Civil proceedings by or against the Government must be instituted by or against the Attorney General under Section 12(1) of the Government Proceedings Act, which is mandatory.
  • Where the Ministry of Defence has an interest in proceedings, it is a necessary party to be enjoined to enable the court to deal with the issues exhaustively.

Court orders

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  1. 1.The order of 24th October, 2019 is hereby reviewed and set aside.
  2. 2.Leave granted for the Attorney General to come on record for the 1st Respondent and to file and serve their reply to the Motion dated 24th September, 2019 within fourteen (14) days.
  3. 3.The Ministry of Defence enjoined in the proceedings as an interested party; the Applicant to file and serve an amended Notice of Motion incorporating the Ministry of Defence as interested party within fourteen (14) days.
  4. 4.Costs of the two applications be in the cause.

Authorities

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Legislation

  • Government Proceedings ActSections 12(1) and 13
  • Constitution of KenyaArticle 248(2)
  • Civil Procedure RulesOrder 45(1)
Jurisdiction invoked
Order 45(1) of the Civil Procedure Rules (review jurisdiction) over the Motion dated 24th September, 2019 in ELC No. 78 of 2019

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, "Leseru Tebeson Farmers Society v Chief Registrar of Titles, Nairobi & another [2020] KEELC 3487 (KLR)", Case Analysis (2020). ELC No. 78 of 2019 (with the two Notices of Motion dated 5th November, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3487/eng@2020-02-05

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