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)
The bottom line
#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
#Executive summary
#Key legal issues
#Access to suit land pending hearing
Prayers 2, 3 and 4 refused as they would upset the subsisting injunction and concern public land.
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.
Joinder of Machakos County Government and National Land Commission
Joinder declined; plaintiff sued the correct parties.
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.
Security for costs
Security for costs refused; threshold not met.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated June 2, 2020 is dismissed
- 2.Costs of the application to the Plaintiff/Respondent
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; Civil Procedure Rules (Order 1 Rule 10 and Order 26 Rule 1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.