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ELCDismissed· [2023] KEELC 396 (KLR)

Ethics and Anti -Corruption Commission v Gacanja & 2 others; Machakos County Government (As succession of County Council of Masaku) & another (Intended Defendant) (Environment & Land Case 127 of 2019) [2023] KEELC 396 (KLR)

Environment and Land Court
1 February 2023
2,085 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked a developer from accessing disputed public land and refused to force the anti-corruption agency to cover costs.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos on a Notice of Motion dated June 2, 2020 filed by the 2nd Defendant, Joseph Mutuku Muia, in a land recovery suit instituted by the Ethics and Anti-Corruption Commission. The applicant, who claimed to be a lessee holding title to LR Machakos Municipality Block 1/623, sought access to the suit land to complete construction, an order that the Plaintiff deposit Kshs 28,000,000 as security for costs, joinder of the Machakos County Government and the National Land Commission as Defendants, and consequential leave to amend the pleadings. The Plaintiff, through its Principal Investigator Gideon Rukaria, opposed the application, explaining that investigations under section 11(1)(j) of the Ethics and Anti-Corruption Commission Act had established fraudulent acquisition of what was alienated government land reserved for Government Housing, and that Justice Angote had on September 18, 2020 granted an injunction restraining interference with the land. Justice Christine Ochieng framed three issues. She refused access to the land, holding the prayers amounted to setting aside the subsisting injunction in a dispute over public land. She declined the joinder, holding that a plaintiff cannot be compelled to sue a party and that the applicant was free to issue third party notices. On security for costs, she held the threshold was unmet given the Plaintiff's status as a Constitutional Commission funded by the exchequer, applying Shah v Shah and later authorities. The application was dismissed with costs on February 1, 2023.

Key legal issues

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01

Access to suit land pending hearing

Holding

Prayers 2, 3 and 4 refused as they would upset the subsisting injunction and concern public land.

Reasoning

The court noted Justice Angote's ruling of September 18, 2020 granting an injunction restraining the Defendants from entering or interfering with the suit land. No appeal was lodged against that order. Allowing re-entry would effectively set aside the injunction, which the court could not do in an interlocutory application, particularly where the dispute revolves around a claim of public land.

p. 3
02

Joinder of Machakos County Government and National Land Commission

Holding

Joinder declined; plaintiff sued the correct parties.

Reasoning

Under Order 1 Rule 10 of the Civil Procedure Rules and the Civicon Limited test, joinder lies only for parties whose presence is necessary for complete adjudication. The court found the Commission, having investigated, sued the correct parties; the applicant may issue third party notices instead.

p. 4
03

Security for costs

Holding

Security for costs refused; threshold not met.

Reasoning

Under Order 26 Rule 1 the discretion must be exercised reasonably and judicially. The plaintiff is a Constitutional Commission funded by the exchequer, acted within its mandate in recovering public land, and the defendant failed to show it could not pay costs if ordered.

p. 5

Legal principles established

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  • A plaintiff cannot be compelled to sue a party; an applicant who wishes to involve other parties may take out third party notices.
  • Security for costs is discretionary and is normally required only from plaintiffs resident outside the jurisdiction.

Court orders

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  1. 1.The Notice of Motion dated June 2, 2020 is dismissed
  2. 2.Costs of the application to the Plaintiff/Respondent

Authorities

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Legislation

  • Ethics and Anti-Corruption Commission Actsection 11(1)(j)
  • Government Proceedings Actsection 16
  • Civil Procedure Rules, 2010Order 1 Rule 10
  • Civil Procedure Rules, 2010Order 26 Rule 1

Cases cited (4)

  • Civicon Limited v Kivuwatt Limited and 2 Others
    [2015] eKLR
  • Shah V Shah
    [1982] KLR 95
  • Sakafu Limited v Flowcrete East Africa Limited
    [2019] eKLR
  • Christopher Musyoka Musau V Katherine Brown
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Civil Procedure Rules (Order 1 Rule 10 and Order 26 Rule 1)

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, "Ethics and Anti -Corruption Commission v Gacanja & 2 others; Machakos County Government (As succession of County Council of Masaku) & another (Intended Defendant) (Environment & Land Case 127 of 2019) [2023] KEELC 396 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/396/eng@2023-02-01

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