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ELCAllowedCivil Suit Number 573 of 2017· [2020] KEELC 3549 (KLR)

Ethics & Anti-Corruption Commission v Wilson Gacanja & 10 Others; National Land Commission(Interested Party) [2020] KEELC 3549 (KLR)

Environment and Land Court
30 January 2020
703 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed the EACC can recover public land on behalf of counties without joining them, and allowed correction of a mistaken property owner's name.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Nairobi (E.O. Obaga, J) on an application dated 12th September 2019 by the Ethics & Anti-Corruption Commission seeking leave to amend its Plaint in a suit for recovery of LR No. 209/5581 on behalf of Nairobi City County, successor of Nairobi City Council. The suit property had been designated a children's playground, and special conditions in the grant barred subdivision, sale, transfer or subletting. The town clerk unprocedurally revoked the special conditions, enabling subdivision and allocation to some Defendants; the property was later transferred to the 11th Defendant, which irregularly amalgamated the subdivisions. The Plaint erroneously described the property as owned by the University of Nairobi, prompting the amendment application. The 3rd Respondent opposed via grounds of opposition, contending there is no entity known as 'County Government of Nairobi' and that the entity on whose behalf recovery is sought was not a party, rendering the application incompetent. The court framed one issue: whether the Applicant demonstrated grounds for leave to amend. It found the error inadvertent, noting the rest of the Plaint showed the property belonged to the City Council of Nairobi, predecessor of Nairobi City County. It held that an applicant is not tied to the annexed draft amendment, and that there is no legal requirement for the beneficiary entity to be a party since the EACC has the statutory mandate to recover public property. The court allowed the amendment within 14 days, with costs in the cause.

Key legal issues

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01

Whether leave to amend the Plaint should be granted to correct the erroneous description of the owner of the suit property

Holding

Leave granted; the error was inadvertent and the Plaint can be amended to reflect the true owner, not necessarily tied to the annexed draft

Reasoning

The court found the description of the suit property as owned by the University of Nairobi was an inadvertent error, since the rest of the Plaint showed it belonged to the City Council of Nairobi, predecessor of Nairobi City County. It held that a prayer to amend in terms of an annexed draft does not confine the amendment to that draft; once leave is granted, the Plaint may be amended to reflect the true description. The 3rd Respondent's objection that County Government of Nairobi is a non-existent entity was not a bar to amendment.

p. 1
02

Whether the public entity on whose behalf the Plaintiff seeks to recover property must be made a party to the suit

Holding

No; there is no such legal requirement

Reasoning

The 3rd Respondent argued the application was incompetent because the entity on whose behalf recovery was sought was not a party. The court rejected this, holding that the Applicant (EACC) has the mandate to recover property on behalf of public entities and that no legal requirement compels the joining of that entity as a party. The opposition therefore lacked merit.

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Legal principles established

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  • There is no legal requirement that the public entity on whose behalf property is recovered must be made a party to the proceedings

Court orders

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  1. 1.The Applicant is allowed to amend the Plaint within 14 days from the date of the ruling to reflect the proper owner of the suit property
  2. 2.Costs of the application shall be in the cause
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; amendment of pleadings under the Civil Procedure Act and Rules

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, "Ethics & Anti-Corruption Commission v Wilson Gacanja & 10 Others; National Land Commission(Interested Party) [2020] KEELC 3549 (KLR)", Case Analysis (2020). Civil Suit Number 573 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3549/eng@2020-01-30

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