Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Petition Nos 50 to 55 of 2019 (consolidated)· [2022] KEELC 3357 (KLR)

Creekport Limited v National Land Commission; Kahia Transporters Ltd (Intended Interested Party) (Environment & Land Petition 53 of 2019) [2022] KEELC 3357 (KLR)

Environment and Land Court
9 May 2022
6,119 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court allowed Kahia Transporters to join an SGR compensation case, ruling joinder can happen at any stage despite years of delay.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Mombasa (LL Naikuni J) on a notice of motion dated November 1, 2021 by Kahia Transporters Limited, the intended interested party, seeking joinder into consolidated petitions (ELC Petition Nos 50 to 55 of 2019) in which the petitioner seeks compensation of Kshs 14,442,995 for land compulsorily acquired for the Standard Gauge Railway, plus interest and general damages. The applicant, already engaged in boundary and ownership disputes with the petitioner in ELC (Mbsa) No 405 of 2017, argued that its land overlapped the acquired parcel and that its article 40 right to property would be breached without a hearing, and further sought a stay on sub-judice grounds under section 6 of the Civil Procedure Act. The petitioner opposed, citing the applicant's three-year delay after being directed to file a formal application, concealment of consent orders, and the applicant's failure to join the petitioner in ELC No 405 of 2017. The court framed three issues and, invoking its inherent and overriding powers under the ELC Act, Land Act, Land Registration Act and article 159 of the Constitution, joined the intended interested party suo motu as 2nd respondent, holding that joinder may occur at any stage and was necessary for complete adjudication and to avoid conflicting decisions. It declined to stay the suit, holding the matter did not offend sub-judice, set a timetable culminating in judgment on June 22, 2022, barred further interlocutory applications, and directed each party to bear its own costs.

Key legal issues

#
01

Threshold for joinder of a party under Order 1 rule 10 of the Civil Procedure Rules

Holding

The intended interested party met the threshold; the court, suo motu and invoking its inherent powers, joined it as a respondent despite the applicant having framed the request as interested party joinder

Reasoning

The court applied Order 1 rules 1 to 25, defining an interested party as one with a recognizable stake. It held joinder is discretionary and may be done at any stage, guided by natural justice and the presence of a common question of law or fact. Given the boundary and ownership dispute and the compensation claim over the compulsorily acquired land, the intended interested party's presence was necessary for complete adjudication, and the court invoked its overriding jurisdiction to join it as a respondent.

p. 8
02

Whether the suit was sub judice under section 6 of the Civil Procedure Act given ELC (Mbsa) No 405 of 2017

Holding

The matter did not offend the sub-judice doctrine; the stay sought was refused

Reasoning

The court found overlapping boundary and ownership disputes existed across several suits, but concluded that joinder of the interested party would avoid conflicting decisions over the same subject matter rather than require a stay. It directed the parties to be heard on the alleged consent order of December 13, 2017 and the DCI letter alleging fraudulent acquisition, and held the matter was not sub judice.

p. 10
03

Whether the applicant's delay of about three years should defeat the joinder application

Holding

Delay did not bar joinder; the court balanced it against the need for complete adjudication

Reasoning

The petitioner argued the application was an afterthought brought after pleadings closed, three years after an oral application was declined with directions to file formally. The court acknowledged the mistake of waiting three years and directed it be viewed with abundant caution, but found the substantive boundary dispute and risk of irreparable loss to the applicant's compensation claim outweighed procedural objections.

p. 8

Legal principles established

#
  • A court may on its own motion add a party to a suit where such party is necessary for the determination of the real matter in dispute, and joinder may be done at any stage of the proceedings
  • Joinder of parties may be refused where it would occasion practical problems, unnecessary costs, or where the proposed cause of action is incompatible with the existing one; the determining factor is a common question of fact or law

Court orders

#
  1. 1.Notice of motion application dated November 1, 2021 allowed upon fulfillment of all prerequisite conditions
  2. 2.Intended interested party joined as 2nd respondent
  3. 3.Petitioner granted leave to file an amended petition within seven (7) days
  4. 4.Intended interested party to file replies to the petition within fourteen (14) days
  5. 5.Petitioner granted liberty to file supplementary affidavit, other documents and/or written submissions within fourteen (14) days
  6. 6.1st and 2nd respondents granted seven (7) days to file and serve written submissions
  7. 7.All parties barred from filing any further interlocutory applications pending judgment on June 22, 2022 by virtual means
  8. 8.Held that the matter did not offend the doctrine of sub-judice vis-à-vis ELC (Mbsa) No 405 of 2017 under section 6 of the Civil Procedure Act, Cap 21
  9. 9.Each party to bear its own costs

Authorities

#

Legislation

  • Civil Procedure ActCap 21, sections 1, 1A, 3A, 6 and 27
  • Civil Procedure Rules, 2010Order 1 rules 1-25 (esp. rule 10), Order 7 rule 9
  • Constitution of KenyaArticles 40(1)(2) and (3), 159(1) and (2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2
  • Environment and Land Court ActNo 19 of 2011, sections 3(1) and 13(1)
  • Land ActNo 6 of 2012, section 150
  • Land Registration ActNo 3 of 2012, section 101
  • Companies ActCap 486

Cases cited (13)

  • Samuel Mburu Gichanga v Peter Ndungu Kinuthia & 4 others
    [2018] eKLR
  • JMK v MWM & another
    [2015] eKLR
  • Joseph Leboo & 2 others v Director of Forest Services & another
    [2013] eKLR
  • Republic v Registrar of Societies Kenya and 2 others
    [2017] eKLR
  • Francis Karioki Muruatetu & another v Republic & 5 others
    Nairobi Petition No 15 of 2015 consolidated with Petition No 16 of 2015
  • Republic v Kisumu County Land Registrar & 2 others; Rose CA Nyaseme & another (Interested Parties)
    Kisumu (ELC) JR No 4 of 2020; [2021] eKLR
  • Meme v Republic & another
    [2004] 1 KLR 637
  • Joseph Onsumu & 2 others v Gideon Mokaya Kibagendi & 5 others; Kisii County Government (Proposed Interested Party/Applicant)
    Kisii ELC No 224 of 2016; [2021] eKLR
  • Mary Njeri Kabundi v Christine Mithiri Mbugua & 2 others
    Thika ELC Case No 153 of 2017; [2020] eKLR
  • Eunice Nduku Kivelenge & Wavinya Kivelenge v Matenge Nthano Kivai; Fredrick Mutisya Kisilu (Interested Party/Applicant)
    Makueni ELC No 208 of 2017; [2020] eKLR
  • John Harun Mwau v Simone Haysom & 2 others; Attorney General & 2 others (Interested Parties)
    HCCC Civil Suit No 115 of 2019; [2021] eKLR
  • Lucy Nangari Ngigi & 128 others v National Bank of Kenya Limited & another
    [2015] eKLR
  • Communications Commission of Kenya & 3 others v Royal Media Services Limited & 7 others
    Petition No 14 of 2014; [2014] eKLR
Jurisdiction invoked
Sections 3(1) and 13(1) of the Environment and Land Court Act, No 19 of 2011; section 150 of the Land Act, No 6 of 2012; section 101 of the Land Registration Act, No 3 of 2012; Order 1 rule 10 of the Civil Procedure Rules, 2010; sections 1, 1A and 3A of the Civil Procedure Act, Cap 21; Articles 40 and 159(1) and (2) of the Constitution of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Creekport Limited v National Land Commission; Kahia Transporters Ltd (Intended Interested Party) (Environment & Land Petition 53 of 2019) [2022] KEELC 3357 (KLR)", Case Analysis (2022). ELC Petition Nos 50 to 55 of 2019 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3357/eng@2022-05-09

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