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ELCAllowedEnvironmental and Land Originating Summons 329 of 2015 & Environment & Land Case 183 of 2015 (Consolidated)· [2022] KEELC 12828 (KLR)

Kenya Co-operative Creameries v Mboga & 106 others; National Land Commission (Interested Party)

Environment and Land Court
3 October 2022
3,041 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Mombasa court allowed 44 long-time residents of disputed Miritini land to join a KCC ownership case, confirming that anyone affected by land litigation has a right to be heard.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (L.L Naikuni, J) determined a chamber summons application dated November 3, 2021 by 44 intended defendants seeking to be joined as defendants and/or interested parties in a consolidated land suit in which Kenya Co-operative Creameries claimed ownership of land reference MN/VI/2860 Miritini against Hassan Ali Mboga & 106 others, alleging encroachment. The applicants deponed that they had lived on the suit land since the 1950s/1960s, were unaware of the transfer of the land or of the suit, and had never been served. The plaintiff opposed, arguing a similar joinder application had been allowed in 2018, that the order had been advertised in the Daily Nation, and that the application was an abuse of process, relying on the Supreme Court's decision in Communication Commission of Kenya v Royal Media Services. The court framed three issues: the threshold for joinder, entitlement to relief, and costs. Applying Order 1 rule 10(2) of the Civil Procedure Rules and the principles in Pravin Bowry, Deported Asians Custodians Board and Francis Kariuki Muratetu, the court held that the applicants' long residence gave them a personal, identifiable and proximate interest, and that they would suffer prejudice if not joined. Emphasising natural justice and the sensitivity of land disputes, the court allowed the application, granted the plaintiff 14 days to amend its plaint, allowed further affidavits and pleadings within 14 days, directed the suit be heard within 180 days with a hearing on February 28, 2023, and ordered costs of the application to be in the cause.

Key legal issues

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01

Threshold for joinder of parties under Order 1 rule 10(2) of the Civil Procedure Rules

Holding

The 44 intended defendants, having lived on the suit land since the 1950s/1960s, have a personal, identifiable and proximate interest and would suffer prejudice if not joined

Reasoning

The court applied Order 1 rule 10(2) and the principles in Pravin Bowry and Deported Asians Custodians Board, and the interested-party elements in Francis Kariuki Muratetu. It found the applicants' long residence gave them a proximate stake, and that joinder would avoid multiplicity of suits and allow complete adjudication of all questions in the land dispute.

p. 6
02

Right to be heard in land matters

Holding

Natural justice and the sensitivity of land ownership disputes require that each party be accorded an opportunity to be heard; the plaintiff retains the opportunity to cross-examine the applicants at trial

Reasoning

The court balanced the applicants' right of access to justice under Article 48 against the plaintiff's diligence in advertising the suit. It held that joinder was just and fair, and that any concerns about the applicants' proximity to the land could be tested at trial through cross-examination.

p. 6
03

Costs of the application

Holding

Although costs follow the event, since the suit is yet to be heard, costs should be in the cause

Reasoning

Relying on section 27(1) of the Civil Procedure Act and Hussein Janmohammed, the court noted a successful party ordinarily gets costs, but because the main suit remains unheard, it deferred costs to the outcome of the suit.

p. 6

Legal principles established

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  • Any party reasonably affected by pending litigation is a necessary and proper party and should be joined in the suit
  • Joinder is discretionary, not as of right; the applicant must demonstrate a proximate personal interest, prejudice from non-joinder, and the relevance of their submissions

Court orders

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  1. 1.The chamber summons application dated November 3, 2021 be and is hereby allowed
  2. 2.The plaintiff/respondent granted 14 days leave to amend, file and serve an amended plaint
  3. 3.Both the 44 applicants and the plaintiff/respondent at liberty to file any affidavits or pleadings they deem fit within the next 14 days
  4. 4.The suit to be heard and finally determined within the next 180 days; hearing on February 28, 2023; each party granted 30 days leave to file and exchange further documents
  5. 5.Costs of the chamber summons application to be in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 27(1)
  • Civil Procedure Rules, 2010Order 1 rules 1-15, 10(2), 10(4), 14 & 25
  • Constitution of Kenya, 2010Article 48

Cases cited (8)

  • Lucy Nungari Ngigi & 128 others v National Bank of Kenya Limited & another
    (2015) eKLR

    Joinder of parties - right to be heard

  • Rubina Ahmed & 3 others v Guardian Bank Ltd
    (2019) eKLR

    Joinder of parties

  • JMK v MWM & another
    (2015) eKLR

    Joinder of parties

  • Communication Commission of Kenya & 4 others v Royal Media Services Limited & 7 others
    (2014) eKLR

    Court will not enjoin a party disguising itself as an interested party while merely seeking to institute a fresh suit

  • Francis Kariuki Muratetu & Anor v Republic & 5 others
    (2016) eKLR

    Elements for admission of an interested party: proximate interest, prejudice, and relevance of submissions

  • Pravin Bowry v John Ward & another
    (2015) eKLR

    Principles for joinder of parties to a suit

  • Deported Asians Custodians Board v Jaffer Brothers Limited
    (1999) 1 EA 55 (SCU)

    Distinction between a party who ought to have been joined and one whose presence is necessary for effectual adjudication

  • Hussein Janmohammed & Sons v Twentsche Overseas Trading Company Limited
    (1967) EA 287

    A successful party should ordinarily be awarded costs unless the court directs otherwise

Jurisdiction invoked
Section 3A of the Civil Procedure Act (Cap 21) and Order 1 rules 10(2), (4), 14 & 25 of the Civil Procedure Rules, 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, "Kenya Co-operative Creameries v Mboga & 106 others; National Land Commission (Interested Party)", Case Analysis (2022). Environmental and Land Originating Summons 329 of 2015 & Environment & Land Case 183 of 2015 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12828/eng@2022-10-03

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