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ELCAllowedELC Case (Mombasa) - application dated 10th February 2021 (referencing ELC MISC APP NO. 35 of 2016, Kenya Airports Authority v Elezar Kamau Thiongo & Others)· [2021] KEELC 2040 (KLR)

Khalid Omar Swaleh v Kenya Airports Authority; Kenya Railways Corporation (Intended 2nd Defendant) [2021] KEELC 2040 (KLR)

Environment and Land Court
22 July 2021
CYC.K. Yano
1,892 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 Kenya Airports Authority to bring Kenya Railways into an airport land dispute, confirming courts freely join necessary parties.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) determined the defendant's Notice of Motion dated 10th February 2021 in a suit in which the plaintiff, a registered lessee of Plot MN/V/239 at Kwa Jomvu Railway Station, Changamwe, sued the Kenya Airports Authority for demolishing his workshop shade pursuant to orders in earlier miscellaneous proceedings. The defendant sought leave to join Kenya Railways Corporation as 2nd defendant and to amend its Amended Statement of Defence to include a counterclaim against the plaintiff and the intended defendant, contending that the suit property lay within the flight path of Moi International Airport and that Kenya Railways had no authority to lease it. The plaintiff opposed, arguing that his claim lay strictly against the defendant and that any counterclaim issues should be litigated in a fresh suit. Applying Order 1 Rule 10(1) and Order 8 of the Civil Procedure Rules, and the discretionary principles in the Joseph Ochieng (Aquiline Agencies) case, the court held that Kenya Railways Corporation was a necessary party since ownership of the suit property and the validity of the lease could only be fully determined with it before the court. No prejudice to the plaintiff was established, and the joinder would save court time and public funds consistent with Article 232(1)(b) of the Constitution. The application was allowed: leave was granted to join Kenya Railways Corporation as 2nd defendant and to amend the defence within 14 days, with corresponding parties allowed 14 days to respond, and costs in the cause.

Key legal issues

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01

Whether joinder of Kenya Railways Corporation as 2nd defendant was necessary

Holding

Joinder was necessary because the ownership of the suit property and the validity of the lease between the plaintiff and Kenya Railways Corporation were issues arising on the pleadings that could only be fully determined with the Corporation before the court.

Reasoning

The plaintiff pleaded that the suit property belonged to Kenya Railways Corporation which leased it to him, while the defendant asserted the property was within a restricted flight path and that the lease was null and void. Joining the Corporation would enable the court to inquire into ownership and settle all questions in one suit.

p. 2
02

Whether the plaintiff would suffer prejudice from the amendment and joinder

Holding

No prejudice or injustice was established; the application was made at an early stage of the litigation.

Reasoning

The court noted that neither the replying affidavit nor oral submissions demonstrated any prejudice. Amendments at an early stage are freely allowed where no injustice results, and justice works both ways since the plaintiff too may amend his plaint.

p. 2
03

Whether joinder was preferable to filing a fresh suit

Holding

Joinder was preferable as it would save the court's time and ensure economic use of public funds under Article 232 of the Constitution.

Reasoning

Both entities are public corporations bound by the values in Article 232(1)(b) on efficient, effective and economic use of resources. Joining the intended defendant avoids multiplicity of suits and minimises legal costs, serving the overriding objective.

p. 2

Legal principles established

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  • A court may at any stage of proceedings allow joinder of a party whose presence is necessary to enable the court effectually and completely adjudicate upon and settle all questions in the suit.
  • Amendments are allowed at any stage of the proceedings provided they do not prejudice or cause injustice to the other parties.

Court orders

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  1. 1.Leave granted to join Kenya Railways Corporation in the proceedings as the 2nd defendant
  2. 2.Leave granted to the applicant to amend its Amended Statement of Defence within 14 days from the date of the ruling
  3. 3.The corresponding parties to have 14 days from the date of service to file their responses or replies
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 1, 10(2); Order 1 Rule 10(1); Order 8
  • Civil Procedure ActSections 1A, 1B, 3A and 63
  • Constitution of Kenya, 2010Article 232, sub-Article 1(b)

Cases cited (1)

  • Joseph Ochieng & 2 others Aquiline Agencies v First National Bank of Chicago
    (1995) eKLR
Jurisdiction invoked
Order 1 Rule 10(1) and Order 8 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63 of the Civil Procedure Act

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, "Khalid Omar Swaleh v Kenya Airports Authority; Kenya Railways Corporation (Intended 2nd Defendant) [2021] KEELC 2040 (KLR)", Case Analysis (2021). ELC Case (Mombasa) - application dated 10th February 2021 (referencing ELC MISC APP NO. 35 of 2016, Kenya Airports Authority v Elezar Kamau Thiongo & Others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2040/eng@2021-07-22

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