Trustees of Kenya Ports Authority Pension Scheme v Nairobi City Council & another (Environment & Land Case 932 of 2016) [2023] KEELC 286 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to remove a former MCA from a land dispute because she waited until after the hearing ended to ask.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Defendant is improperly joined and whether her presence is necessary
The 2nd Defendant is a necessary party; the application to strike her out was dismissed
Applying Order 1 Rule 10(2) and the twin test in Werrot v Gregory, the court found the Plaintiff asserted a direct and real interest and right of relief against the 2nd Defendant, who was sued both as MCA and individually and admitted involvement in advising residents on upgrading kiosks on the suit property. Further, the suit had proceeded to hearing, the Plaintiff testified through two witnesses, and the 2nd Defendant closed her case without evidence, making removal at that stage improper.
Timing of the application to be removed from proceedings
It is too late, the matter being pending judgment
The court held that since the suit had proceeded to full hearing, with the Plaintiff presenting two witnesses and the 2nd Defendant electing not to adduce evidence, the prudent course was to determine the suit on its merits on the pleadings and evidence on record rather than remove a party at that stage.
Legal principles established
#- A party sued both in an official and individual capacity whose acts are directly in issue is a necessary party who cannot be struck out at the close of proceedings
- An application to be removed as a party after hearing and closure of the party's case is properly refused as it comes too late
Court orders
#- 1.The Notice of Motion dated 21st February 2022 is dismissed with costs
- Jurisdiction invoked
- Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 (discretion to strike out or add parties); Article 159(2)(a) and (b) of the Constitution invoked on expeditious disposal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Trustees of Kenya Ports Authority Pension Scheme v Nairobi City Council & another (Environment & Land Case 932 of 2016) [2023] KEELC 286 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/286/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.