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ELCAllowedNotice of Motion dated 17th February 2020 (ELC suit, Nairobi)· [2021] KEELC 471 (KLR)

Angelo Costabir v Robert Otach Kibagendi & another; Mountain Mall Limited (Interested Party) [2021] KEELC 471 (KLR)

Environment and Land Court
9 December 2021
LKL. KOMINGOI
1,605 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 confirmed tenants can join property lawsuits as interested parties when the outcome affects their lease or rent obligations.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (L. Komingoi J, delivered 9th December 2021) determined a notice of motion dated 17th February 2020 by Mountain Mall Limited seeking to be enjoined as an interested party in a suit concerning ownership of land parcel Land Reference Number 330/357. The application, brought under Order 8 Rule 3 of the Civil Procedure Rules and Sections 3A and 63(e) of the Civil Procedure Act, was supported by the affidavit of the applicant's Managing Director, James Kiniiya Gachiri, who deponed that the 1st Defendant leased the premises to the applicant in September 2019 for twenty years at Kshs.1,000,000/= monthly, that the applicant had paid Kshs.9,500,000/=, developed a shopping mall, and filed Nairobi ELC Case No.369 of 2019 in which it obtained injunction orders. The Plaintiff opposed, arguing that the correct provision was Order 1 Rule 10(2), that the applicant breached court orders in taking the lease, that it belonged in the category of plaintiff or defendant or could seek compensation from the 1st Defendant, and that interested-party joinder is confined to judicial review and constitutional petitions. The court identified a single issue: whether the applicant should be joined. Relying on Order 1 Rule 10 and Marigat Group Ranch v Wesley Chepkemoiment, where Munyao J envisaged a tenant being enjoined in an ownership dispute, the court held that the applicant, a tenant in occupation not agitating ownership but affected by the outcome, fits the definition of an interested party and its presence would avoid multiplicity of suits. The application was allowed; the applicant was enjoined as an interested party, directed to file documents and witness statements within 21 days, and ordered to bear the costs of the application.

Key legal issues

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01

Whether the applicant tenant satisfies the criteria for joinder as an interested party

Holding

The Applicant fits the definition of an interested party as a tenant with a financial interest to defend in the suit property.

Reasoning

The court applied the Trusted Society of Human Rights Alliance definition and Order 1 Rule 10, holding that a tenant in occupation under a lease of the suit property, though not asserting ownership, has a stake in the proceedings since it does not know to whom rent should be paid and will be affected whichever way ownership is decided. Its presence also helps avoid multiplicity of suits given ELC Case No. 369 of 2019.

p. 2
02

Whether joinder as interested party is confined to judicial review and constitutional petitions

Holding

The court rejected that position, exercising its discretion under Order 1 Rule 10 to join the applicant to this civil suit.

Reasoning

The Plaintiff argued that interested-party joinder is only feasible in judicial review and constitutional petitions, but the court relied on Order 1 Rule 10 and the Marigat Group Ranch authority, where Munyao J envisaged a tenant being enjoined as an interested party in an ownership dispute between others over leased property.

p. 2

Legal principles established

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  • A tenant who does not agitate rights of ownership but whose interests will be affected by the outcome of a property dispute may be enjoined as an interested party under Order 1 Rule 10(2).

Court orders

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  1. 1.The Applicant, Mountain Mall Limited, is enjoined in the suit as an interested party
  2. 2.The Interested Party is directed to file any documents/witness statements within 21 days from the date of the ruling, with corresponding leave to the Plaintiff/Defendants to file any additional documents if need be
  3. 3.Costs of the application shall be borne by the Interested Party

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 8 Rule 3
  • Civil Procedure ActSections 3A and 63(e)
  • Civil Procedure Rules 2010Order 1 Rule 10(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rule 2, 7(2)

Cases cited (9)

  • Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others
    [2014] eKLR
  • Cyprian Andama v Director of Public Prosecution & Another
    [2018] eKLR
  • Kenya Medical Laboratory Technicians & Technologies Board & 6 Others v The Attorney General & 4 others
    [2017] eKLR
  • Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others & Michael Wainaina Mwaura (as amicus curae)
    [2017] eKLR
  • Francis Kriokor Muruatetu & Another v Republic & 5 Others Petition 15 as consolidated with 16 of 2013
    [2016] eKLR
  • Shivling Supermarket Limited V Jimmy Ondicho Nyabuti & 2 others
    [2018] eKLR
  • Kenya Railway Co-operation v Kizingo Apartments Limited & 2 Others
    [2016] eKLR
  • Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others
    [2015] eKLR
  • Marigat Group Ranch & 3 others v Wesley Chepkemoiment & 19 others
    [2014] eKLR
Jurisdiction invoked
Order 8 Rule 3 and Sections 3A and 63(e) of the Civil Procedure Act; Order 1 Rule 10(2) of the Civil Procedure Rules 2010

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, "Angelo Costabir v Robert Otach Kibagendi & another; Mountain Mall Limited (Interested Party) [2021] KEELC 471 (KLR)", Case Analysis (2021). Notice of Motion dated 17th February 2020 (ELC suit, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/471/eng@2021-12-09

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