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ELCDismissedNotice of Motion dated 21st January 2021· [2021] KEELC 2908 (KLR)

Richard Kimani v Swalehe Mohamed Mwakuriwa & 5 others; County Government of Kwale(Intended Interested Party/Applicant) [2021] KEELC 2908 (KLR)

Environment and Land Court
8 June 2021
CYC.K. Yano
1,146 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Mombasa refused to join the County Government of Mombasa to a land suit because it showed no real stake in the case.

What this practically means

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Executive summary

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The County Government of Mombasa, described as the 3rd defendant in ELC No 174 of 2012, applied by Notice of Motion dated 21st January 2021 under Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act to be enjoined as an interested party in this suit. Its director of legal services, Kelvin M. Dzumo, deposed that the suit against it in ELC 174 of 2012 disclosed no cause of action, that a stay of proceedings issued there on 3rd October 2017 prevented it from moving that court, and that the dispute had caused loss of land rates revenue. The plaintiff and the 4th and 5th defendants opposed, contending that the application was misconceived, that the applicant had no stake in this suit, and that it improperly sought to attack orders made in a different suit and to delay a part-heard matter. The court restated the Order 1 Rule 10(2) test that joinder is warranted only where the party's presence is necessary to effectually and completely adjudicate the suit, and adopted the Supreme Court's interested-party principles articulated in Raila Odinga v IEBC (drawing on Muruatetu) as set out in Harpal Singh Semhi. Finding that the applicant identified no interest in this suit and was pleading issues belonging to ELC 174 of 2012, the court held the application was a delaying tactic, dismissed the Notice of Motion with costs to the plaintiff and 5th defendant.

Key legal issues

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01

Whether the County Government of Mombasa should be joined as an interested party

Holding

Application dismissed; joinder refused because the applicant established no identifiable interest in the suit and its grievances lie in ELC 174 of 2012

Reasoning

Order 1 Rule 10(2) permits joinder where necessary for complete adjudication. The applicant relied on loss of rates revenue and a stay of proceedings in a different suit, ELC 174 of 2012, which issues the court held should be litigated there. Applying the Supreme Court's principles from Raila Odinga and Muruatetu as adopted in Harpal Singh Semhi, the applicant failed to set out a proximate interest, prejudice, or non-replicative submissions, and the application appeared to be a delaying tactic in a part-heard 2009 suit.

p. 2

Legal principles established

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  • Enjoinment as an interested party is not as of right but at the court's discretion, requiring a demonstrable personal interest proximate to the matter, prejudice from non-joinder, and the relevance of intended submissions
  • A party is joined to a suit only where its presence is necessary to enable the court to effectually and completely adjudicate upon all questions in the suit

Court orders

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  1. 1.The Notice of Motion dated 21st January 2021 is dismissed
  2. 2.Costs of the application awarded to the plaintiff and 5th defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63(e)

Cases cited (3)

  • Harpal Singh Semhi & 4 others v Zehrabanu Janmohammed & 3 others; Sports Registrar & 9 others
    [2020] eKLR
  • Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Michael Wainaina Mwaura (as Amicus Curiae)
    [2017] eKLR
  • Francis Karioki Muruatetu & Another v Republic & 5 others
    Petition 15 as consolidated with 16 of 2013 [2016] eKLR
Jurisdiction invoked
Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A and 63(e) 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, "Richard Kimani v Swalehe Mohamed Mwakuriwa & 5 others; County Government of Kwale(Intended Interested Party/Applicant) [2021] KEELC 2908 (KLR)", Case Analysis (2021). Notice of Motion dated 21st January 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2908/eng@2021-06-08

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