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ELCPartially AllowedNakuru ELC suit (as stated in Notice of Motion dated 16th December 2019; number not printed)· [2020] KEELC 3859 (KLR)

John Ndungu Mwaura & 20 others v Municipal Council of Nakuru [2020] KEELC 3859 (KLR)

Environment and Land Court
3 February 2020
1,595 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 allowed Nakuru Water to join a 25-year-old land case as an interested party, but refused to make it a defendant against the plaintiffs' wishes.

What this practically means

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Executive summary

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Nakuru Water & Sanitation Services Limited, by Notice of Motion dated 16th December 2019 under Order 1 Rule 10 of the Civil Procedure Rules, sought to be enjoined in this long-running land suit as an interested party or, alternatively, as an additional defendant, with leave to file a defence and comply with Order 11. The applicant, sworn by its managing director J.N. Gachathi, deposed that the suit land was acquired by the defunct Municipal Council of Nakuru for the Nakuru Sewerage Scheme, that it is in charge of the sewerage works and in possession of the property, and would be affected by any orders. The defendant did not oppose. Two plaintiffs opposed, arguing the applicant was adequately represented by the defendant as a 'silent party' and that joinder after 25 years of litigation would be burdensome. Ohungo J applied the Supreme Court's guidelines in Communications Commission of Kenya (stake, relevance and prejudice) and the criteria in Meme v Republic, and held the applicant qualified as an interested party since plaintiffs sought a permanent injunction against the defendant and its agents, which would affect the applicant. However, joinder as a defendant was refused: no right to relief was pleaded against the applicant, and following Marigat Group Ranch the court should not impose a defendant upon unwilling plaintiffs. The court joined the applicant as an interested party, directed compliance with Order 11 within seven days, and awarded costs in the cause.

Key legal issues

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01

Whether the applicant qualified for admission as an interested party

Holding

Yes - the applicant is in possession of and utilises the suit property for sewerage services and would be affected by any permanent injunction against the defendant

Reasoning

Applying the Supreme Court's guidelines in Communications Commission of Kenya and Meme v Republic, the court asked what stake the intended interested party has and whether it would suffer prejudice if joinder was denied. The plaintiffs themselves admitted the applicant utilises the suit property, and the relief sought (permanent injunction against the defendant and its agents) would directly affect the applicant. Joinder as interested party was therefore warranted.

p. 2
02

Whether the applicant should alternatively be joined as a defendant

Holding

No - no right to relief was alleged against the applicant under Order 1 Rule 3, and the court should not impose a defendant on unwilling plaintiffs

Reasoning

Under Order 1 Rule 3 joinder as defendant requires that a right to relief in respect of the same act or transaction be alleged against the person sought to be joined. The plaintiffs pleaded no claim against the applicant and opposed its joinder. Following Munyao J in Marigat Group Ranch, the court declined to compel an amendment to accommodate a party against whom no cause of action was asserted, holding that interested party status suffices for the participation sought.

Legal principles established

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  • A person with a stake in proceedings who will be affected by the decision qualifies to be joined as an interested party
  • The court should be slow to impose a defendant upon a plaintiff who has chosen not to claim against that person

Court orders

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  1. 1.Nakuru Water & Sanitation Services Limited is hereby joined to this suit as an interested party
  2. 2.The interested party to file and serve list of witnesses, witness statements, list of documents and to generally comply with Order 11 of the Civil Procedure Rules within seven days from the date of delivery of this ruling
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 1 Rule 3
  • Civil Procedure RulesOrder 11

Cases cited (4)

  • Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others
    [2014] eKLR
  • Meme v. Republic
    [2004] 1 EA 124
  • Marigat Group Ranch & 3 others v Wesley Chepkoiment & 19 others
    [2014] eKLR
  • Mumo Matemo case (Ruling cited within Communications Commission of Kenya)
Jurisdiction invoked
Order 1 Rules 3 and 10 of the Civil Procedure 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, "John Ndungu Mwaura & 20 others v Municipal Council of Nakuru [2020] KEELC 3859 (KLR)", Case Analysis (2020). Nakuru ELC suit (as stated in Notice of Motion dated 16th December 2019; number not printed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3859/eng@2020-02-03

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