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ELCPartially AllowedEnvironment & Land Petition 47 of 2021· [2022] KEELC 14610 (KLR)

Godoomal & another v National Environment Management Authority (NEMA) & 3 others; Vacuum Filler Limited & 6 others (Intended Interested Party)

Environment and Land Court
17 October 2022
LNL.L. Naikuni
8,314 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The intended interested parties, traders operating businesses in containers and structures along the boundary of the petitioners' plots on Tom Mboya Avenue, Mombasa, moved the court by notice of motion dated August 5, 2022 seeking leave to be joined to the environmental petition, stay of execution of the court's orders of July 27, 2022 (order (f)) directing KURA to remove their containers within fourteen days, and setting aside or variation of those orders. The 1st and 2nd petitioners filed a preliminary objection contending the application was bad in law and that the applicants lacked locus standi, arguing the businesses were illegally erected on a public road reserve and that the petition concerned public-interest environmental rights under Articles 42, 69 and 70. The court framed three issues: the threshold of the preliminary objection, whether joinder was warranted, and costs. Applying Mukisa Biscuits, it held the objection raised a pure point of law on locus standi and met the threshold. On joinder, it reviewed Order 1 Rule 10(2) CPR, the Mutunga Rules and Supreme Court authority, and - noting the petition's pleadings directly blamed the traders, that a parallel adverse-possession suit over the land was pending, that the site visit of October 6, 2022 showed licensed businesses paying statutory dues and no survey proving encroachment - allowed joinder subject to conditions, stayed the removal orders pending determination of the petition, extended timelines, and directed KURA to file a comprehensive project plan for the road reserve within thirty days. The application succeeded; the preliminary objection partially succeeded; each party was to bear its own costs.

Key legal issues

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01

Threshold of a preliminary objection

Holding

The preliminary objection met the required threshold as it raised the weighty legal issue of locus standi, though the court still dealt with it in depth

Reasoning

The court applied the Mukisa Biscuits test that a preliminary objection must be a pure point of law. It found the locus standi objection a weighty legal issue requiring critical assessment at all stages, and held the objection met the required standard, to be dealt with in depth.

p. 7
02

Joinder of interested parties in a constitutional petition

Holding

The intended interested parties were joined because the petition's pleadings directly referenced them as the cause of the alleged environmental violations, and fairness required they be heard

Reasoning

Applying Order 1 Rule 10(2) CPR, the Mutunga Rules and Supreme Court authority, the court considered whether the applicants had an identifiable stake and whether joinder would assist determination of all questions. Because the petition expressly blamed the applicants' businesses for the environmental degradation complained of, fair adjudication required their evidence; the site visit also showed they were licensed, paying statutory dues, and no survey proved encroachment on the petitioners' land.

p. 15
03

Stay of execution of removal orders

Holding

Stay of the July 27, 2022 order (f) granted pending hearing and determination of the main petition

Reasoning

The court found the applicants had not been shown to have encroached on the petitioners' land, no survey report proved encroachment, and the structures were temporary with businesses paying statutory dues. It was fair to hear the parties first before final determination, hence stay pending the petition's determination.

p. 16

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • An interested party is one with an identifiable stake or legal interest or duty in the proceedings who was not a party ab initio
  • Joinder may be allowed where the presence of the party is necessary to enable the court to effectually and completely adjudicate upon and settle all questions in the suit

Court orders

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  1. 1.Notice of motion dated August 5, 2022 allowed subject to two conditions: a full list of all interested parties and their interests on the boundary line/site be prepared, and each interested party to furnish the court with their licences and business/trade documents within seven days
  2. 2.Interested parties to file and serve their Notices of Appointment as interested parties and pleadings to the main petition within fourteen days of the ruling
  3. 3.Petitioners and respondents granted leave within fourteen days to file any amended pleadings and further lists of documents
  4. 4.Stay of execution of the orders issued on July 27, 2022, in particular order (f) directing the 3rd respondent to remove the containers belonging to the interested parties within fourteen days, pending hearing and final determination of the main petition
  5. 5.Extension of a further fourteen days to the timelines and directions taken on February 3, 2022 for hearing and finalising the main petition; mention on November 29, 2022
  6. 6.Judgment of the main petition to be delivered on February 27, 2023 or earlier via Microsoft Teams virtual means
  7. 7.KURA ordered to furnish the court within thirty days with a comprehensive Project Plan comprising a Land Survey Report, Maps, Title and Approved Designs/Plan, time frame and budgetary estimates on the road reserve
  8. 8.Each party to bear their own costs of the notice of motion application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 50, 159(1) & (2), 42, 69, 70, 22, 23, 165(3)(b)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2, 3, 5(d), 7, 19, 25
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 1 Rules 1-25, Order 1 Rule 10(2), Order 7 Rule 9, Order 18 Rule 11, Order 41 Rule 5
  • Supreme Court ActNo 7 of 2011
  • Environmental Management and Coordination Act1999
  • Physical Planning Actnot specified
  • County Government Building By-lawsRegulation 252(1)

Cases cited (8)

  • Mukisa Biscuits Manufacturing Co Limited v West End Distributors Limited
    [1969] EA 696

    Definition and threshold of a preliminary objection as a pure point of law

  • Attorney General & Another v Andrew Mwaura Githinji & another
    [2016] eKLR

    Scope, nature and meaning of a preliminary objection

  • Justin Kithinji Nderi & 2 others v Director of Public Prosecutions & Another; Njiiru Micheni Nthiga (interested party)
    [2020] eKLR

    Factors for joinder of an interested party

  • SKOV Estate Limited & 5 Others v Agricultural Development Corporation & Another

    Necessity of demonstrating more than a cursory interest for joinder

  • Habiba W. Ramadhan & 7 others v Mary Njeri Gitiba
    (2017) eKLR

    Court's discretion under Order 1 Rule 10(2) to order joinder at any stage

  • Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others
    [2014] eKLR

    Definition of an interested party and reasons for joinder

  • Meme v Republic
    [2004] 1 EA 124

    Reasons for joinder: complete settlement, protection of rights, preventing proliferated litigation

  • Lucy Nangari Ngigi & 128 Others v National Bank of Kenya Limited & Another
    (2015) eKLR

    Joinder may be refused where it causes practical problems or incompatible causes of action

Jurisdiction invoked
Articles 22(1) & (2)(c), 23(1), 70 and 165(3)(b) of the Constitution of Kenya, 2010 (petition under the Mutunga Rules)

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, "Godoomal & another v National Environment Management Authority (NEMA) & 3 others; Vacuum Filler Limited & 6 others (Intended Interested Party)", Case Analysis (2022). Environment & Land Petition 47 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14610/eng@2022-10-17

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