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ELCPartially Allowed· [2021] KEELC 1476 (KLR)

Florence Nafula Ayodi & 5 others v Jonathan Ayodi Ligure v John Tabalya Mukite & another; Benson Girenge Kidiavai & 67 others (Applicants/Intended Interested Parties) [2021] KEELC 1476 (KLR)

Environment and Land Court
18 October 2021
FNFRED NYAGAKA
6,002 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 68 land buyers to join a land case, but refused their request to challenge earlier orders before formally joining.

What this practically means

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Executive summary

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In this interlocutory ruling of the Environment and Land Court at Kitale, sixty-eight proposed interested parties moved the Court by Notice of Motion dated 12/8/2021 seeking joinder in a land dispute over LR No. Kiminini/Kinyoro/Block 3/Siuna/60, leave to participate fully, review of orders issued on 6/8/2021, and costs. The applicants, self-described bona fide purchasers for value of portions of the suit property, deponed that they had paid survey fees, appeared on the subdivision plan and members register, occupied and developed their parcels for over 25 years, and awaited individual titles. The plaintiffs opposed, arguing the applicants' interests were adequately represented by the defendants and that their evidence would merely replicate the defendants'. The court framed three issues: the prerequisites for interested-party status, whether joinder should be allowed, and whether the 6/8/2021 orders should be reviewed. Setting out the definitions in Rule 2 of the Mutunga Rules, Section 23 of the Supreme Court Act, and the Muruatetu criteria, the court held the applicants had demonstrated an identifiable, proximate proprietary stake, real prejudice from non-joinder, and a case not subsumed in the defendants'. It granted leave for joinder, stressing that interested-party status is not an automatic right and criticising counsel for mislabelling proposed parties. However, it declined the prayer to review the 6/8/2021 orders, holding it premature and incompetent since it was lodged before joinder was granted. Costs were ordered in the cause, with a virtual mention set for 02/11/2021.

Key legal issues

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01

Prerequisites for joinder as an interested party

Holding

The applicants met the Muruatetu threshold: they are bona fide purchasers for value in occupation for over 25 years, appear in the members register, face real prejudice if condemned unheard, and their case is not a mere replica of the defendants'.

Reasoning

The court applied the definition in Rule 2 of the Mutunga Rules and the Supreme Court's principles in Muruatetu. Purchasers of portions of the suit property who await titles and have developed the land have a direct, identifiable proprietary stake. Their interests would be imperilled if they depended solely on the defendants' conduct of the case, and the plaintiffs showed no prejudice from joinder.

p. 6
02

Competency of prayer for review of 6/8/2021 orders before joinder

Holding

The prayer was premature and incompetent because it was made while the applicants were still strangers to the proceedings; leave to be enjoined must precede any further applications.

Reasoning

The court held that a proposed interested party must first seek and obtain leave, then come on record, and only thereafter make substantive applications. Seeking review of interlocutory orders before joinder was 'putting the cart before the horse', a step in a vacuum that could not survive if the applicants never took up the joinder.

p. 6
03

Distinction between adding a party as plaintiff/defendant and enjoining an interested party

Holding

The first limb of Order 1 rule 10(2) governs addition of plaintiffs or defendants, while the last limb, together with Rule 7 of the Mutunga Rules, provides the special procedure for enjoining interested parties.

Reasoning

The court read Order 1 rule 10(2) disjunctively, holding that the phrase permitting addition relates to plaintiffs and defendants, whereas the phrase allowing inclusion of persons whose presence is necessary for effectual adjudication grounds the joinder of interested parties under the two-tier leave process in Rule 7 of the Mutunga Rules, which contemplates an application by the person or a suo motu order by the court.

p. 5

Legal principles established

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  • Enjoinment as an interested party is not an automatic right; a proposed interested party must first satisfy the court of the legal criteria for joinder and should not be styled an 'interested party' before joinder.
  • A proposed interested party must demonstrate an identifiable, proximate personal interest or stake, prejudice from non-joinder, and submissions distinct from those of the existing parties.
  • No application other than for leave to be enjoined may competently be made by a proposed interested party before leave is granted; subsequent prayers are premature and incompetent.
  • Joinder of parties is possible at any stage of pending proceedings before the court becomes functus officio.

Court orders

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  1. 1.Leave granted to the Applicants to be enjoined as Interested Parties in this suit
  2. 2.Prayer 4 (review/vary of orders of 6/8/2021 and leave to respond to the Plaintiffs' application dated 16/4/2021) declined as premature and incompetent
  3. 3.Matter to be mentioned virtually on 02/11/2021 to confirm steps taken and for further orders and directions
  4. 4.Costs of the Application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 48, 50, 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 2B, 3A, 100
  • Civil Procedure Rules 2010Order 1 rules 5 and 10(2), Order 8 rule 8, Order 11, Order 51
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 2 and 7
  • Supreme Court Act, No. 7 of 2011Section 23
  • Supreme Court Rules, 2012Rule 25

Cases cited (10)

  • Leonard Kimeu Mwanthi v Rukaria M'twerandu M'iringu; Nathaniel Kithinji Ikiugu & 4 others (Intended Interested Parties)
    [2021] eKLR
  • CENTRAL KENYA LTD. V. TRUST BANK & 4 OTHERS
    CA NO. 222 OF 1998
  • Telkom Kenya Limited vs John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited)
    (2014) eKLR
  • Judicial Service Commission v Speaker of the National Assembly & another
    [2013] eKLR
  • Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others
    [2014] eKLR
  • Joseph Njau Kingori vs. Robert Maina Chege & 3 others
    [2002] eKLR
  • Baluram vs P. Chellathangam & Ors
    10 December, 2014
  • JMK v MWM & another
    [2015] eKLR
  • Temple Point Resort Limited v Accredo A G & 5 others
    [2018] eKLR
  • Francis Karioki Muruatetu & Another v Republic & 5 Others
    Petition 15 as consolidated with 16 of 2013 [2016] eKLR
Jurisdiction invoked
Articles 40, 48 and 50 of the Constitution; Sections 1A, 2B, 3A and 100 of the Civil Procedure Act; Order 1 rules 5 and 10(2), Order 8 rule 8 and Order 51 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, "Florence Nafula Ayodi & 5 others v Jonathan Ayodi Ligure v John Tabalya Mukite & another; Benson Girenge Kidiavai & 67 others (Applicants/Intended Interested Parties) [2021] KEELC 1476 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1476/eng@2021-10-18

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