U-Haul Vehicle Ltd v Kiambu Dandora Farmers Co. Ltd & 5 others; Ben Maina Mwangi & 6 others (Proposed Interested Parties) [2021] KEELC 1576 (KLR)

Environment and Land Court

4 October 2021

SOS. Okong'o

4,034 words in judgment

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The bottom line

A Kenyan court allowed developers to join a land case but refused to cancel demolition orders because they ignored the case while building.

What this practically means

Executive summary

This ruling by the Environment and Land Court at Nairobi (S. Okong'o, J) determines a Chamber Summons dated 23rd December, 2020 by seven proposed interested parties in a land dispute over L.R Nos. 209/9465, 209/9466, 209/9467 and 209/9468. The plaintiff had sued the 1st defendant over interference with the suit properties, obtaining injunction orders including one of 17th June, 2019 stopping all construction. Construction nevertheless continued, and by a ruling of 26th November, 2020 the court found the activities to be in contempt and ordered demolition of all structures erected after 17th June, 2019. The applicants then sought joinder and setting aside of those orders, claiming to be innocent purchasers for value from the 1st defendant who were condemned unheard. The plaintiff opposed, arguing the applicants were shareholders of the 1st defendant who knew of the suit and had no distinct interest. Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the Muruatetu criteria, the court allowed joinder, holding that the applicants, now claiming ownership of the impugned structures, should be heard on how the structures were erected and why court orders were disobeyed. However, the court refused the setting aside limb, holding it was premature since it was brought before joinder, and that the applicants, having been aware of the suit but choosing not to participate in order to continue construction, had deliberately obstructed the cause of justice and could not benefit from the court's discretion. Costs were in the cause.

Key legal issues

Joinder of interested parties

Holding

The applicants should be joined because they now claim ownership of the structures erected on the suit properties and must explain under what circumstances the structures were put up and why court orders were disobeyed

Reasoning

The dispute concerned construction on the suit properties carried out in defiance of court orders, and no one had come forward to own the constructions. The applicants, though allegedly aware of the suit as shareholders of the 1st defendant, now claim the structures. The court found that having claimed the structures, they should be heard; turning them away would be unjust given that even the police had failed to bring them to court under an earlier arrest order.

p. 4

Setting aside of ex parte orders

Holding

The limb seeking setting aside of the demolition orders was refused as premature and without merit

Reasoning

The setting aside application should not have been brought together with the joinder application; the applicants should first have been joined. The court noted it lacked basic information about when the applicants entered, constructed, and whether the structures were approved. Applying Shah v Mbogo, the applicants were aware of the suit and orders but chose not to participate in order to continue construction, and were prompted to action only by the demolition orders; deliberate obstruction disqualifies them from the court's discretion.

p. 5

Legal principles established

Enjoinment of an interested party is discretionary and requires demonstration of a personal identifiable interest, prejudice from non-joinder, and the relevance of the submissions the party intends to make
A court's discretionary powers must be exercised judiciously and not capriciously
The power to set aside an ex parte order is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructed or delayed the cause of justice

Court orders

1.The applicants are joined in this suit as 1st to 7th interested parties respectively
2.The applicants are at liberty to apply for and take copies of the pleadings in the court file that they may need
3.The costs of the application shall be in the cause

Authorities

Legislation

Civil Procedure Rules, 2010Order 1 Rule 10(2)

Cases cited (3)

Francis Karioko Muruatetu & Another v Republic & 5 Others
[2016] eKLR
Patriotic Guards Ltd. v James Kipchirchir Sambu
Nairobi CA No. 20 of 2016, (2018) eKLR
Shah v Mbogo
[1967] E.A 116

Jurisdiction invoked: Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 (inherent jurisdiction over joinder of parties)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "U-Haul Vehicle Ltd v Kiambu Dandora Farmers Co. Ltd & 5 others; Ben Maina Mwangi & 6 others (Proposed Interested Parties) [2021] KEELC 1576 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1576/eng@2021-10-04

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