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ELCAllowedApplication dated 25.10.2019 in Meru ELC Constitutional Petition (filed 29.10.2019)· [2021] KEELC 4535 (KLR)

Jacob Makunyu & 122 others v District Land Adjudication and Settlement Officer, Imenti Central District & another; Gideon Muchui Arithi & 1836 others (Applicants/Interested Parties) [2021] KEELC 4535 (KLR)

Environment and Land Court
3 February 2021
4,038 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Meru's Environment and Land Court allowed 1,800+ land occupants to join a petition as interested parties, confirming no one with an identifiable stake can be shut out of a hearing.

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 Meru (L.N. Mbugua, ELC Judge) on an application by Gideon Muchui Arithi and others seeking to be enjoined as interested parties in a constitutional petition concerning the creation of the Mbwaa 'A' Adjudication Section out of the Ruiri-Rwarera Adjudication Section. The applicants, self-described lawful occupants of the suit land since time immemorial, argued that adjudication had reached approximately 98% completion pursuant to a Court of Appeal consent order in Civil Appeal No. 129 of 2005 before injunctive orders halted it. The petitioners and respondents opposed, contending the petition concerns the unilateral creation of the adjudication section rather than proprietorship, that the applicants were busybodies acting too late, and that the applicants had not exhausted dispute resolution mechanisms under the Land Adjudication Act, Cap 284. The court examined the prayers in the petition and found that ownership was in fact a central issue, placing the applicants' claims directly at par with the petitioners'. It applied the principles in Joseph Njau King'ori and the definitions of an interested party under Rule 2 of the 2013 Mutunga Rules and Order 1 rule 10(2). It rejected the exhaustion objection because the dispute's complexity exceeded Cap 284 mechanisms, held that the locus standi objection required factual analysis, and invoked Article 50(1) on the right to be heard. The application was allowed, with costs to abide the outcome of the petition. The ruling was delivered electronically pursuant to COVID-19 practice directions.

Key legal issues

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01

Whether the applicants qualify as interested parties under Rule 2 of the Mutunga Rules and Order 1 rule 10(2) CPR

Holding

They do; they demonstrated an identifiable stake and stand to be affected by the orders sought in the petition.

Reasoning

The court defined an interested party per Black's Law Dictionary and Rule 2 of the 2013 Rules and examined Order 1 rule 10(2). Examining the prayers in the petition, it found the ownership claim of the petitioners directly paralleled the applicants' claim as occupants, making the applicants necessary parties whose presence is needed to completely settle all questions.

p. 6
02

Whether failure to exhaust dispute resolution mechanisms under Cap 284 bars joinder

Holding

It does not; the dispute is complex, concerning creation of a new adjudication section, and exceeds ordinary adjudication mechanisms.

Reasoning

The court noted it had previously held (Johnson Mbaabu Mburugu) that the Ruiri-Rwarera/Mbwaa 'A' dispute goes beyond ascertainment of rights, involving the creation of the adjudication section itself and its interpretation and implementation of a Court of Appeal consent order, so reliance on Cap 284 mechanisms was not sustainable. The court also questioned why the same route was not recommended for the petitioners.

p. 5
03

Whether lack of written authority from the 1832 persons is fatal

Holding

The objection was not properly raised before the court.

Reasoning

The court found that the issue of consent/authority was not raised in the petitioners' replying affidavit of Jacob Makunyu but only surfaced in submissions, and therefore could not be determined on submissions alone without being properly pleaded in response to the application.

p. 5

Legal principles established

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  • An intending party to be joined must be a necessary or proper party whose presence is necessary to enable the court effectually and completely adjudicate upon and settle all questions in the dispute.
  • The right to be heard is a valued right and a party's rights should not be prejudiced without an opportunity to be heard.
  • A party seeking joinder must demonstrate a legal, identifiable interest or duty in the pending litigation.

Court orders

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  1. 1.Application filed on 29.10.2019 allowed; the applicants enjoined as interested parties in the petition
  2. 2.Costs of the application to abide the outcome of the petition

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 1; Order 1 rule 10(2); Order 21 rule 1
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2
  • Constitution of Kenya, 2010Article 40; Article 50(1)
  • Land Adjudication ActCap 284

Cases cited (30)

  • Altana Corporations limited vs Clarence Matheny Leadership Training Institute; National Land Commission (Garnishee) Ethics and Anti-corruption commission (intended interested party)
    (2019) eKLR
  • Brek Sulum Hemed vs Constituency Development Fund Board & another
    (2014) eKLR
  • Catherine Nyambura vs Director of Public prosecution & 3 others
    (2018) eKLR
  • Chief Land Registrar & 4 others vs Nathan Tirop Koech & others
    (2018) eKLR
  • J.S Yadav vs state of U.P & another
    18.4.2011
  • Kenya Medical Laboratory Technicians and Technologists Board & 6 others vs Attorney General & 4 others
    (2017) eKLR
  • Lagoon Development Limited vs Beijing Industrial Designing & Research Institute
    (2015) eKLR
  • Parsaloi Ole Meikoki vs Commissioner of Lands & 9 others
    (2017) eKLR
  • Raila Amolo Odinga & another vs Independent Electoral Boundaries Commission & 2 others & Michael Wainaina Mwaura (as amicus curiae)
    (2017) eKLR
  • Rising Star Commodities Limited vs Mohammed Iqbal Mohamed
    (2019) eKLR
  • Rose Florence Wanjiru vs Standard Chartered Bank of Kenya Limited & 2 others
    (2014) eKLR
  • Samuel Murithi Watatua & another vs Republic
    (2012) eKLR
  • Yusuf Abdi Adan & another vs Hussein Ahmed Farah & 3 others
    (2016) eKLR
  • Republic vs the County Government of Nakuru & 3 others
    Nakuru Judicial Review 19 of 2016
  • Hellen Muthoni Kabengi & 20 others vs Municipal Manager Isiolo Municipality and 4 others
    Meru ELC Petition 12 of 2019
  • Republic vs Musanka Ole Runkes Tarakwa & others Exparte Joseph Lesalol Lekition & others
    (2015) eKLR
  • John Kariuki & 347 others vs John Mungai Njoroge & 8 others
    Nakuru HCCC no. 152 of 2003 (unreported)
  • Beatrice Wanjiru, Mary Mumbi Gatimu & others vs the Attorney General & another
    Nyeri Employment and Labour Relations Court Constitutional Petition no. 7 of 2016
  • Gladys Nyawira & others T/A Nyeruruma self-help group vs the County Government of Nyeri & another
    Nyeri petition 12 of 2016
  • Abdalla Abdulrman vs The Ministry of Lands and Planning & Housing Mombasa County & 5 others
    Mombasa ELC no. 225 of 2016
  • Attorney general of Uganda vs Omar Awadh & 6 others
    (2013) eKLR
  • Shirvling supermarket limited vs Jimmy Ondicho Nyabuti & 2 others
    (2018) eKLR
  • Civicon Limited vs Kivuwatt Limited & 2 others
    (2015) eKLR
  • Law Society of Kenya vs Commissioner of Lands & others
    Nakuru High Court civil case no. 464 of 2000
  • Alfred Njau and others vs City Council of Nairobi
    (1982) KAR 229
  • Joseph Njau King'ori vs Robert Maina Chege and 3 others
    (2002) eKLR
  • Johnson Mbaabu Mburugu and another vs Mathew Nabea and 9 others
    2020 (eKLR)
  • JMK vs MWK and MFS
    Mombasa Court of Appeal Case No. 15 of 2015
  • Mbaki and others vs Macharia and another
    (2005) 2 EA 206
  • Catherine Muthoni Kiriungi & another v Chairman, Land Adjudication & Settlement Officer, Tigania East Central Division & 3 others
    [2017] eKLR
Jurisdiction invoked
Article 50(1) of the Constitution; Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Order 1 rule 10(2) Civil Procedure Rules

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, "Jacob Makunyu & 122 others v District Land Adjudication and Settlement Officer, Imenti Central District & another; Gideon Muchui Arithi & 1836 others (Applicants/Interested Parties) [2021] KEELC 4535 (KLR)", Case Analysis (2021). Application dated 25.10.2019 in Meru ELC Constitutional Petition (filed 29.10.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4535/eng@2021-02-03

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