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ELCDismissedEnvironment & Land Case E004 of 2022· [2022] KEELC 12727 (KLR)

Kariuki Mathu v Kenya National Highway Authority & another

Environment and Land Court
28 September 2022
TMT. W. Murigi
1,734 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a defendant cannot apply to join an interested party in a case — only the interested party itself can make that application.

What this practically means

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Executive summary

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The 1st defendant, Kenya National Highway Authority, moved the court by notice of motion dated March 10, 2022 under Order 1 rule 10(2) of the Civil Procedure Rules seeking to enjoin the Kenya Forest Service as an interested party in a land dispute over property allegedly needed for the Kibwezi Interchange. The applicant averred that KFS held a Special Use License over the suit property and was its lawful owner following revocation of the plaintiff's title by the National Land Commission, and that KFS had an identifiable stake and would be prejudiced by non-joinder. The plaintiff opposed, asserting he was the bona fide registered owner, that KFS had no locus standi and no claim over his land, and that the application was a delaying tactic. The plaintiff further argued that a defendant may only join a third party, not an interested party, and that any interested party must apply on its own motion. The court framed a single issue: whether the application to enjoin KFS as an interested party was merited. Relying on Order 1 rule 10(2), the Trusted Society and Muruatetu authorities, the court held that a defendant may only enjoin a third party; an application to join an interested party must be made by the intended interested party itself, demonstrating an identifiable stake. Since the application was made by the defendant on KFS's behalf, it was improper and was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether a defendant may apply to enjoin an interested party

Holding

No - a defendant may only join a third party; an interested party must move the court itself

Reasoning

The court held that Order 1 rule 10(2) permits a defendant to add a third party, but joinder of an interested party requires a formal application by the person claiming the interest, who must demonstrate an identifiable stake and the prejudice of non-joinder. The 1st defendant's application on behalf of Kenya Forest Service was therefore improperly before the court and the application failed without considering the merits of the stake claimed.

p. 4

Legal principles established

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  • Under the Civil Procedure Rules a defendant may only enjoin a third party; an application to join an interested party must be made by the intended interested party itself

Court orders

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  1. 1.The notice of motion dated March 10, 2022 seeking joinder of Kenya Forest Service as interested party is dismissed
  2. 2.Costs of the application awarded to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10(2)
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (5)

  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd
    (1998) 1EA55

    Court's power to order joinder to effectually determine questions in the suit

  • KMK v MWM & another
    (2015) eKLR
  • Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others
    (2015) eKLR

    Definition of an interested party - one with a stake affected by the decision

  • Raila Amollo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Micheal Wainana Mwaura (as Amicus Curie)
    (2017) eKLR

    Principles guiding joinder of an interested party

  • Francis Karoki Muruatetu & another v Republic & 5 others
    (2010) eKLR

    Key elements for joinder of an interested party: identifiable stake, prejudice, and intended submissions

Jurisdiction invoked
Order 1 rule 10(2) of the Civil Procedure Rules; sections 1A, 1B and 3A 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, "Kariuki Mathu v Kenya National Highway Authority & another", Case Analysis (2022). Environment & Land Case E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12727/eng@2022-09-28

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