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ELCAllowedNotice of Motion Application dated 4th March 2021 (suit number not stated in judgment)· [2021] KEELC 606 (KLR)

Republic v Principal Secretary, State Departent of Housing and Urban Development & 6 others Ex Parte Wycliffe Otieno Menga & 11 others; Settlement Executive Committee (Intended Interest Party) [2021] KEELC 606 (KLR)

Environment and Land Court
24 November 2021
AOAntony Ombwayo
2,996 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 a residents' settlement committee to join a Kisumu land case because the outcome on title deeds directly affects the residents it represents.

What this practically means

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Executive summary

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This is a first-instance ruling of the Environment and Land Court at Kisumu (Antony Ombwayo, J) on a Notice of Motion dated 4th March 2021 by the Settlement Executive Committee seeking to be enjoined as an interested party in a suit concerning land at the Shauri Moyo informal settlement, Muhoroni sub-county, Kisumu. The Committee, formed under the Kenya Informal Settlement Improvement Project (KISIP) with residents, deposed through its Secretary James Omondi Alosi that it mobilized and sensitized residents on the Government's informal settlement improvement initiative and public participation, and that residents feared the court's decision would adversely affect the issuance of title deeds over plots they occupy and develop. The ex parte Applicants (1st-13th, through Wycliffe Otieno) opposed, contending that the Committee is not a legal entity capable of being a party, that it acted as the Respondents' agent, that it lacks a personal stake and has not demonstrated prejudice, and that its members irregularly allocated themselves plots; they urged dismissal of the application. Both sides filed submissions, relying on the Mutuatetu joinder elements, the definition of an interested party under Rule 2 of the Mutunga Rules, and Kipsiwo Community Self Help Group on unincorporated entities. The court framed a single issue: whether the Committee should be enjoined. Applying Order 1 rule 10(2) of the Civil Procedure Rules and the principles in Kingori v Chege, the court held that the ultimate order could not be enforced without the Committee's presence, as it represents the residents of Shaurimoyo. The court allowed the joinder, directed the Committee to file and serve an affidavit within 14 days, and ordered costs in the cause.

Key legal issues

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Whether the Settlement Executive Committee should be enjoined as an interested party

Holding

The court allowed the joinder, finding the Committee necessary for complete adjudication and enforcement of the court's order.

Reasoning

The court applied Order 1 rule 10(2) and the principles in Kingori v Chege, that an interested party must be necessary and proper, that the ultimate decree cannot be enforced without them, and that their presence enables the court to effectually and completely adjudicate on all questions. The Committee was formed under KISIP with residents of Shauri Moyo and represents residents apprehensive of the effect of the suit on issuance of title deeds, since most have settled on and developed allotted plots. The court therefore found its presence necessary.

p. 5
02

Whether the Intended Interested Party, being an unincorporated entity, can be a party to the suit

Holding

The court did not accept the ex parte Applicants' objection; the joinder was allowed notwithstanding the claim that the Committee is not a legal entity.

Reasoning

The ex parte Applicants argued, relying on Kipsiwo Community Self Help Group v Attorney General, that an unincorporated entity has no capacity to sue or be sued in its own name. However, the court's analysis focused on the necessity of the Committee's presence as representative of the Shaurimoyo residents and made no express finding adopting the unincorporated-entities objection. The application for joinder was allowed on the Kingori v Chege principles.

p. 5

Legal principles established

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  • A party whose presence is necessary for the enforcement of the ultimate order or decree, and who represents persons affected by the outcome, should be enjoined as an interested party

Court orders

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  1. 1.The Applicant, Settlement Executive Committee, is enjoined in the suit as an Interested Party
  2. 2.The Interested Party to file and serve an affidavit within the next 14 days
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 rule 10(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2

Cases cited (5)

  • Francis K. Muruatetu & Another v. Republic & 5 Others
    (2016) eKLR
  • Kipsiwo Community Self Help Group v Attorney General & 6 Others
    (2013) eKLR
  • Lucas Kabobia Njuguna vs Consolata Bank of Kenya Ltd
    [2005] eKLR
  • Kingori vs Chege and 3 Others
    (2002) 2 KLR
  • Joseph Njau Kingori v Robert Mania Chege & 3 Others
    [2002] eKLR
Jurisdiction invoked
Order 1 rule 10(2) of the Civil Procedure Rules, 2010; Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Republic v Principal Secretary, State Departent of Housing and Urban Development & 6 others Ex Parte Wycliffe Otieno Menga & 11 others; Settlement Executive Committee (Intended Interest Party) [2021] KEELC 606 (KLR)", Case Analysis (2021). Notice of Motion Application dated 4th March 2021 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/606/eng@2021-11-24

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