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ELCPartially AllowedNot stated in the judgment (suit instituted in the High Court at Mombasa on 27 October 1994)· [2022] KEELC 2170 (KLR)

Lawrence Chalalu & 5 others v Tana & Athi River Development Authority (Tarda) & 2 others [2022] KEELC 2170 (KLR)

Environment and Land Court
13 January 2022
3,249 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A 27-year-old Tana River land case can continue with updated government parties and new title-revocation claims, but residents cannot join as plaintiffs and river-diversion claims need a fresh suit.

What this practically means

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Executive summary

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This is a ruling on the plaintiffs' application dated 7 April 2021 seeking leave to further amend the plaint in a land suit instituted in the High Court at Mombasa on 27 October 1994. The six plaintiffs sue on behalf of about 6000 residents of Kulesa and Chunoni Trust Land, claiming the land was trust land held by the County Council of Tana River District as trustee, and that TARDA took it over for its Tana Delta Irrigation Scheme without lawful allocation. The suit had partly proceeded to the defence stage, with parties given liberty to reopen their cases. The application sought to add three plaintiffs proposed by a Council of Elders, substitute defunct defendants, add the Attorney General and the Water Resources Authority, plead a 2013 grant over the suit land revoked in Malindi ELC Constitutional Petition No. 2 of 2015, and add reliefs including revocation of title and restoration of the Tana River's course. The court disallowed the addition of the three plaintiffs, holding that counsel's affidavit showed no mandate, that the representative suit already covers the residents, and that witnesses need not be parties. Substitutions of the County Council and Commissioner of Lands, and the addition of the Attorney General, were allowed to reflect constitutional changes. The amendment introducing WRA and river-diversion claims was refused as a new cause of action, best pursued in a fresh suit. Amendments pleading the grant and its revocation were allowed as tied to the existing cause of action. Leave was granted conditionally with 14 days to file the amended plaint, and there were no orders as to costs.

Key legal issues

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01

Addition of new plaintiffs in a representative suit

Holding

Disallowed - no evidence of mandate; the suit is representative and residents are already represented, and proposed additions may testify as witnesses instead

Reasoning

The affidavit supporting the addition was sworn by counsel, not the plaintiffs, and no Council of Elders resolution or consent of the proposed plaintiffs was annexed. The suit is representative of all residents, so adding more plaintiffs adds nothing. Evidence concerns can be met by calling residents as witnesses without joinder, and uncontrolled joinder risks the suit stalling through successive applications.

p. 3
02

Substitution of defunct institutions and addition of the Attorney General

Holding

Allowed - County Council substituted with County Government of Tana River; Commissioner of Lands substituted with Chief Land Registrar and National Land Commission; Attorney General added

Reasoning

Following the 2010 Constitution, County Councils and the office of Commissioner of Lands ceased to exist, with functions passing to County Governments, the Chief Land Registrar and the National Land Commission. The Attorney General is constitutionally mandated to represent Government bodies, so its addition to represent the Chief Land Registrar is appropriate.

p. 3
03

Introduction of WRA and river-diversion claims

Holding

Disallowed - a new cause of action never pleaded or litigated in over 18 years, prejudicial at this advanced stage; fresh suit permitted

Reasoning

WRMA existed from 2002 until its repeal by the Water Act, 2016, yet no amendment to introduce it was ever made while evidence was taken without it. The proposed prayers to restore the river channel are a new cause of action unrelated to the pleaded issue of wrongful allocation, and introducing them now would prejudice parties who defended only the allocation claim. A separate suit is the appropriate route.

p. 3
04

Amendments pleading the grant and its revocation

Holding

Allowed - tied to the existing cause of action on the allocation of the suit land

Reasoning

The proposed pleadings that a grant (IR No. 152049 over LR No. 28026) issued to the 1st defendant, and the judgment in Malindi ELC Constitutional Petition No. 2 of 2015 revoking it, relate directly to the suit's core issue of whether the land was lawfully allotted. Consequential prayers for revocation of the title and reversion to the plaintiffs were therefore permitted.

p. 3

Legal principles established

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  • Amendments ought to be allowed unless there is prejudice to the other party, but where a new cause of action and new parties are introduced in a part-heard case, the court must weigh whether a fresh suit is preferable.
  • A party cannot be added as plaintiff on the strength of counsel's affidavit alone without evidence of mandate or consent; in a representative suit residents need not be joined as plaintiffs to give evidence.

Court orders

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  1. 1.Leave to amend disallowed in respect of adding Joel Amuma Ruhu, Matan Hedi Joel and John Benjamin Luku as plaintiffs
  2. 2.Leave granted to substitute the County Council of Tana River District with the County Government of Tana River, and to substitute the Commissioner of Lands with the Chief Land Registrar and the National Land Commission
  3. 3.Leave granted to add the Attorney General as a party to the suit
  4. 4.Amendment to introduce Water Resources Authority (WRA) as a party and all claims or prayers on the alleged diversion of the river channel disallowed
  5. 5.Leave granted to plead the grant of LR No. 28026 (IR No. 152049) and the Malindi ELC Constitutional Petition No. 2 of 2015, and to add prayers for revocation of the title
  6. 6.The further amended plaint to be filed and served within 14 days, failing which leave to amend will lapse and the suit continues on the 1995 amended plaint
  7. 7.Defendants at liberty to amend their defences within 14 days if the further amended plaint is filed
  8. 8.No orders as to costs
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Order 8 Rules 3 and 5, Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya (2010)

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, "Lawrence Chalalu & 5 others v Tana & Athi River Development Authority (Tarda) & 2 others [2022] KEELC 2170 (KLR)", Case Analysis (2022). Not stated in the judgment (suit instituted in the High Court at Mombasa on 27 October 1994). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2170/eng@2022-01-13

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