Halima Mahmood Ali (Suing in her capacity as Legal Representative of the Estate of Hawa Hassan Mohamud) v Amal Plaza Limited & 3 others [2021] KEELC 4503 (KLR)
The bottom line
#A Nairobi land court joined new defendants to a property dispute and ordered rent to keep flowing, but refused to evict anyone before trial.
What this practically means
#Executive summary
#Key legal issues
#Consequences of failure to amend within the period granted by the court
The lapse was cured under Order 8 rules 6 and 8 and Article 159(2)(b) and (d) of the Constitution; time was extended and the amended application deemed filed within time
Order 8 rule 6 provides that leave ceases to have effect where amendment is not made within the period given, but without prejudice to the court's power to extend. The respondents suffered no prejudice; they were granted more time to respond in any event. Striking out the application would fly against the constitutional imperative to dispense substantive justice without undue regard to procedural technicalities. The failure to endorse the amendment under Order 8 rule 7 was similarly a procedural lapse overlooked in the absence of prejudice.
Joinder of parties and amendment of pleadings
Joinder of the proposed 2nd, 3rd and 4th defendants was granted; the plaintiff demonstrated arguable claims against them and no party showed prejudice
Order 1 rule 10(2) empowers the court to add any person whose presence is necessary to effectually and completely adjudicate on all questions in the suit. The plaintiff brought herself within that threshold, showing arguable claims arising out of the joint venture, construction, agency and sale agreements. Objections by the proposed defendants went to the merits of their defences, not to the threshold for joinder. The defendant and proposed defendants demonstrated no prejudice or injustice.
Whether interlocutory injunctions should issue
No prima facie case was established; the court preserved the status quo by ordering continued payment of rent and deposit of goodwill in a joint account
Applying Giella v Cassman Brown and Nguruman, the plaintiff failed to show a clear and unmistakable right presently threatened. There was no evidence the first joint venture was terminated in accordance with its terms, no clear evidence of rescission of the second agreement, and a subsisting lease between the plaintiff and the 3rd defendant. Claims against the 1st defendant and 4th proposed defendant rested on contested oral agreements. With facts seriously in conflict, the status quo was maintained pending trial.
Supervisory jurisdiction over the lower court orders in CMCC No. 800 of 2018
Supervisory intervention declined at this stage despite reservations about the lower court orders; the plaintiff was left to pursue setting aside in the lower court
The court had earlier stayed the lower court suit but that stay was set aside by the Court of Appeal. The plaintiff still had a pending application before the lower court to set aside the orders. The court noted on the evidence before it that the lower court had no pecuniary jurisdiction to entertain the 3rd defendant's suit and invited that court to discharge its own orders rather than quashing them from above.
Legal principles established
#- A person may be joined as a defendant to an existing suit where he ought to have been joined under Order 1 rule 3, or where his presence is necessary to enable the court effectually and completely to adjudicate on all questions in the suit
- Amendments and joinder should be allowed freely at any stage provided no prejudice or injustice uncompensatable in costs is caused, no inconsistent cause of action is introduced and no vested or accrued right is affected
- Where there are serious conflicts of fact, the court should maintain the status quo pending trial rather than grant prohibitory or mandatory injunctions
- A superior court may decline to invoke its supervisory jurisdiction over a subordinate court where the aggrieved party has an avenue to seek setting aside of irregular orders in that subordinate court itself
Court orders
#- 1.Center Star Limited, Nuh Abdille Hassan and Hussein Hassan Bood are added to this suit as 2nd, 3rd and 4th defendants respectively
- 2.The plaintiff shall amend the plaint in terms of the draft amended plaint annexed to the plaintiff's affidavit sworn on 5th March, 2018 to effect the joinder
- 3.Pending the hearing and determination of the suit, the 3rd defendant, Nuh Abdille Hassan shall pay to the plaintiff as and when it falls due the rent that was agreed upon by the parties in the Joint Venture Agreement dated 10th November, 2014 and the lease dated 1st January, 2015 in respect of L.R No. 36/460/VII (the suit property)
- 4.Pending the hearing and determination of the suit, the 3rd defendant shall from 1st February, 2021 render to the plaintiff a true account on a quarterly basis of the monies collected or received from the suit property as rent and goodwill
- 5.Pending the hearing and determination of the suit, the monies collected or received from the suit property as goodwill shall with effect from 1st February, 2021 be deposited in a joint bank account in a reputable bank in Nairobi in the names of the advocates on record for the plaintiff and the 3rd defendant, Nuh Abdille Hassan as and when the same is received by the 3rd defendant
- 6.The costs of the application shall be in the cause
- Jurisdiction invoked
- Original civil jurisdiction over land disputes in Nairobi, with supervisory jurisdiction invoked over Nairobi Chief Magistrate's Court Civil Case No. 800 of 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Halima Mahmood Ali (Suing in her capacity as Legal Representative of the Estate of Hawa Hassan Mohamud) v Amal Plaza Limited & 3 others [2021] KEELC 4503 (KLR)", Case Analysis (2021). ELC Case, Nairobi (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4503/eng@2021-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.