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ELCPartially AllowedMalindi ELC Case No. 99 of 2019· [2021] KEELC 3876 (KLR)

Mahmood Abdalla Mohamed & 9 others v Gabriel Katana Kajoji & 3 others; Kalama Rimba Gona & 4 others (Intended Defendants) [2021] KEELC 3876 (KLR)

Environment and Land Court
23 March 2021
2,669 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land court allowed newcomers into a land dispute, merged related cases, and cancelled orders won through incomplete disclosure.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi on a Notice of Motion dated 2nd September 2020 by five Intended Defendants (the Applicants) in Malindi ELC Case No. 99 of 2019. They sought joinder as 5th to 9th Defendants, consolidation with Malindi ELC Case No. 139 of 2015, setting aside of orders issued on 9th December 2019, and a temporary injunction restraining the Plaintiffs from interfering with LR No. MN/II/783 Kilifi County. The Applicants asserted that they were in actual occupation of the suit property, had a pending suit and status quo orders in Malindi ELC Case No. 139 of 2015, and that the Plaintiffs deliberately omitted them from the present suit and executed eviction orders against them without being heard - condemning them unheard through non-disclosure and trickery. The Plaintiffs opposed, describing the Applicants as professional land grabbers, asserting lawful registration since 2013, and denying that the 2014 and 2015 suits had been consolidated. The Court, applying Order 1 Rule 10(2) of the Civil Procedure Rules and the Supreme Court's decision in Trusted Society of Human Rights Alliance v Mumo Matemo, held that the Applicants had an interest in the property and were necessary parties; that common questions of law and fact existed warranting consolidation; and that the Plaintiffs had obtained the 9th December 2019 orders without full disclosure. The application was allowed in terms of prayers 3, 4, 5 and 6, with the Court substituting the sought injunction with restoration and maintenance of the status quo ante the 9th December 2019 orders, and awarding costs to the Intended Defendants.

Key legal issues

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01

Joinder of necessary parties

Holding

The Intended Defendants have an interest in the suit property and are necessary parties to enable the Court to completely and effectively determine the disputes.

Reasoning

The Court's power to enjoin a party is discretionary but must be exercised judiciously. The Applicants are in actual occupation, have a pending suit against the Plaintiffs over the same property, and were deliberately left out of the present suit. Their presence is necessary for the effective and complete adjudication of all questions in dispute, satisfying Order 1 Rule 10(2) of the Civil Procedure Rules.

p. 4
02

Consolidation of suits

Holding

The present suit should be consolidated with Malindi ELC Case No. 139 of 2015 since common questions of law or fact exist and the claims arise from the same transaction.

Reasoning

There exist common questions of law or fact between the two suits which the Plaintiffs have not denied, and the rights or relief claimed relate to the same transaction and the same property. Consolidation saves costs, time and effort and makes the conduct of several actions convenient by treating them as one action. The interests of justice therefore favour consolidation.

p. 4
03

Setting aside orders obtained without full disclosure

Holding

The orders of 9th December 2019 were obtained without full disclosure of the existence of the Applicants and pending litigation, and are set aside.

Reasoning

The Plaintiffs filed this suit and obtained ex parte orders while deliberately omitting the Intended Defendants, against whom they had another pending suit over the same property and a judgment. They executed the eviction orders against persons not party to the suit, condemning them unheard. Non-disclosure of this material state of affairs disentitled the Plaintiffs to retention of the orders, warranting their being set aside.

p. 4

Legal principles established

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  • An interested party is one with a stake in the proceedings who will be affected by the court's decision and whose interests may not be articulated unless they appear.
  • The court may at any stage order the addition of a person whose presence is necessary to enable it completely and effectively adjudicate upon all questions in the suit.
  • The prime purpose of consolidation of suits is to save costs, time and effort by treating several actions as one.

Court orders

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  1. 1.The Intended Defendants are enjoined in the suit as the 5th to 9th Defendants (prayer 4 allowed)
  2. 2.Malindi ELC Case No. 99 of 2019 is consolidated with Malindi ELC Case No. 139 of 2015 (prayer 5 allowed)
  3. 3.The orders issued on 9th December 2019 are set aside (prayer 6 allowed)
  4. 4.Maintenance of the status quo prevailing ante the orders of 9th December 2019, to be restored and maintained pending the hearing and determination of the consolidated suits
  5. 5.The Intended Defendants shall have the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (1)

  • Trusted Society of Human Rights Alliance vs Mumo Matemo & 5 Others
    (2014) eKLR
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules; inherent jurisdiction of the Environment and Land Court

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, "Mahmood Abdalla Mohamed & 9 others v Gabriel Katana Kajoji & 3 others; Kalama Rimba Gona & 4 others (Intended Defendants) [2021] KEELC 3876 (KLR)", Case Analysis (2021). Malindi ELC Case No. 99 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3876/eng@2021-03-23

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