Republic v National Land Commission & 3 others; Ontulili Mt.Kenya Forest Squatters & 3 others (Interested Parties) [2020] KEELC 3648 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed squatters to join a land case, confirming you don't need to have taken part in earlier proceedings to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Mt. Kenya squatters group qualifies to be enjoined as interested parties despite not participating in the NLC proceedings
The application for joinder is merited and allowed; the applicants' absence from the NLC proceedings does not disqualify them from joinder
The court applied Order 1 Rule 10(2) and the Nambuye J principles in Joseph Njau Kingori, holding that an intended interested party need not have taken part in the earlier cause. The applicants claim legal interests in the suit parcels created by legal notices of 1975 and 1977, and their presence is necessary for the court to effectually and completely adjudicate all questions, including competing ownership claims. Objections on exhaustion and the merits of the NLC decision should await the hearing.
Whether the NLC and Kiambogo objections (exhaustion under section 9(2) of the Fair Administrative Action Act, and challenge to the merits rather than process) defeat the joinder
Such objections are premature and contrary to natural justice; they can be raised at the hearing or by preliminary objection once the party is fully on board
The court held that the NLC's line of argument conflicts with the rules of natural justice and Article 50(1). Issues of mandate of the NLC and whether the applicants challenge the decision or the process can arise upon hearing or preliminary objection when the party is fully before the court. The court also noted the inconsistency of the NLC and Kiambogo in opposing this joinder after consenting to similar ones.
Whether the NLC was obliged to conduct public participation involving the applicants
Left for determination at the hearing of the substantive suit
The NLC contended that its process is targeted, involving a complainant and respondent, with no obligation to advertise to the public. The court did not determine this issue on the joinder application, holding that the merits of the applicants' absence and related process questions belong to the full hearing of the judicial review suit.
Legal principles established
#- An intended interested party need not have participated in the previous cause to qualify as an interested party; what is required is a stake or interest in the litigation
- A party seeking joinder must have a legal, identifiable interest or demonstrate a duty
- The right to be heard is a valued right and it offends justice to prejudice a party without an opportunity to be heard
Court orders
#- 1.The application dated 27.9.2019 by the intended 4th interested party is allowed, joining the Mt. Kenya squatters group as the 4th interested parties in the suit
- 2.No orders as to costs
- Jurisdiction invoked
- Article 50(1) of the Constitution and Order 1 Rule 10(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & 3 others; Ontulili Mt.Kenya Forest Squatters & 3 others (Interested Parties) [2020] KEELC 3648 (KLR)", Case Analysis (2020). Judicial Review No. 7 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3648/eng@2020-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.