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ELCDismissedChamber Summons Application dated January 26, 2022 (suit not numbered in judgment)· [2022] KEELC 2818 (KLR)

Eedi Motor Services Limited v Devani & 3 others; Koroma & another (Interested Parties) (Environment & Land Case E015 of 2021) [2022] KEELC 2818 (KLR)

Environment and Land Court
24 May 2022
1,359 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to remove an interested party from a land dispute, saying its role can only be decided at trial, not beforehand.

What this practically means

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Executive summary

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This Environment and Land Court judgment by Mbogo J, delivered via email on 24 May 2022, determined a Chamber Summons dated 26 January 2022 filed by the 2nd interested party/applicant under Order 1 Rules 10(2), 14 and 25 of the Civil Procedure Rules and Sections 1A and 1B of the Civil Procedure Act, seeking its own removal from the suit and costs. The applicant, through its Legal Officer Francis Kariuki, deposed that the plaintiff had taken a Kshs 9,000,000 loan facility secured by a charge dated 12 March 2015 over Cis-Mara/Ilmashariani-Morijo/3834, that the loan was fully discharged, and that the applicant no longer had interest in the suit property. The plaintiff/respondent, through Dipen Dodhia, opposed, contending that the applicant was a necessary and interested party because the original title was in the applicant's custody when the impugned transfer occurred, and that its presence would assist the court to interrogate the issues in totality. The sole issue was whether the 2nd interested party ought to be struck out. The court held that an interested party's participation is more valuable than that of a witness, that the power to strike out must be exercised with caution and without touching the merits (following Madan JA in DT Dobie), and that the applicant's role could only be determined at trial. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the 2nd interested party ought to be struck out from the suit

Holding

The application was dismissed; the 2nd interested party's presence is not meaningless and may assist the court in the fair, effectual and just determination of the dispute

Reasoning

The dispute centred on a charge dated 12th March 2015 and transactions alleged to have taken place thereafter, when the original title was in the applicant's custody. Being an interested party is more valuable to the court than summoning a witness, who may not attend or testify. Striking out would deny the court an opportunity to interrogate the issues in totality, and determining the applicant's role at this stage would require premature assessment of evidence reserved for trial.

p. 3
02

The standard governing exercise of the power to strike out a party

Holding

The power must be exercised with caution, on reason and fairness, and without expressing opinions on the merits

Reasoning

Relying on Madan JA in DT Dobie, the court held that striking out requires consideration of all facts but must not trespass onto the merits, which belong to the trial judge. Whether the applicant had a role in the impugned transfer could not be ascertained on an interlocutory application since evidence can only be tendered at trial.

p. 4

Legal principles established

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  • The power to strike out a party from a suit should be exercised with caution and without embarking on the merits, which are reserved for trial
  • An interested party's presence that assists the court in effectually determining a dispute should not be struck out merely because its direct interest is doubtful; the court retains power under Order 1 Rule 10(2) to strike out later if participation becomes an impediment

Court orders

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  1. 1.The Chamber Summons dated January 26, 2022 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 1 Rule 14
  • Civil Procedure RulesOrder 1 Rule 25
  • Civil Procedure ActSections 1A and 1B
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules), Legal Notice No. 117 of 2013definition of interested party

Cases cited (4)

  • Trusted Society of Human Rights Alliance versus Mumo Matemu & 5 Others
    [2014] eKLR
  • Kenya Medical Laboratory Technicians and Technologists Board & 6 others versus Attorney General & 4 Others
    [2017] eKLR
  • Laisa Mpoye & 2 others versus Kajiado Central Milk Project “The Board” & 5 others
    [2012] eKLR
  • DT Dobie and Company (K) Ltd vs Joseph Mbaria Muchina & another
    (1982) KLR 1
Jurisdiction invoked
Order 1 Rules 10(2), 14 and 25 of the Civil Procedure Rules and Sections 1A and 1B 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, "Eedi Motor Services Limited v Devani & 3 others; Koroma & another (Interested Parties) (Environment & Land Case E015 of 2021) [2022] KEELC 2818 (KLR)", Case Analysis (2022). Chamber Summons Application dated January 26, 2022 (suit not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2818/eng@2022-05-24

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