Moschion v Stuart & another; Pathmark Ventures Limited (Interested Party) (Environment & Land Case 338 of 2018) [2023] KEELC 511 (KLR)
The bottom line
#A Kenyan court refused to punish alleged land-order breaches because the interim orders had expired, but added the property's registered owner to the case.
What this practically means
#Executive summary
#Key legal issues
#Lapse of ex parte interlocutory orders not prosecuted to inter partes determination
The status quo orders of March 20, 2019 and the orders of April 9, 2019 lapsed as the applications underlying them were never prosecuted; they could not be enforced close to four years later
The court perused the file in ELC No. 305 of 2018 and found the orders were ex parte, awaiting inter partes prosecution of the plaintiff's applications, which were never prosecuted. Applying Order 40 Rule 6 jurisprudence, the court held that indefinite interim orders place parties at hardship and guard against dawdling litigants. Enforcement of such stale orders was untenable.
Joinder of an interested party
Pathmark Ventures Limited, the registered proprietor of the suit parcel per official search, is a necessary party and was joined as interested party
The applicant availed an official search showing it owns the suit land, and the plaintiff herself sought orders against it and other parties in her amended application, showing they are intricately connected to the property. It therefore fit the necessary-party description in Order 10 rule 10 of the Civil Procedure Rules.
Active Case Management
The court invoked active case management and its inherent powers to dismiss the myriad applications and direct parties to the substantive suits
The court found the file in danger of being choked by applications rather than progressed to hearing, and invoked Article 159(2)(b) principles and active case management to clear the applications and preserve the status quo pending the hearing and determination of the consolidated suits.
Legal principles established
#- An interlocutory injunction lapses if the suit in which it was made is not determined within twelve months unless the court orders otherwise for sufficient reason (Order 40 Rule 6, Civil Procedure Rules)
- A party with a registered interest in the suit property who is squarely affected by the proceedings fits the description of a necessary party under Order 10 rule 10 of the Civil Procedure Rules
Court orders
#- 1.The application dated May 21, 2019 for joinder of an Interested Party is allowed
- 2.The interested party is directed to file his statement of claim, witness statements and any supporting documents within 14 days from the date of delivery of the ruling
- 3.The application filed by the defendant dated May 9, 2019 is allowed
- 4.The application filed by the plaintifi dated April 8, 2019, amended on April 20, 2020 is dismissed
- 5.All other pending applications are dismissed to pave way for the substantive hearing of the main suits
- 6.Pending the hearing and determination of the suits, the subject parcel(s) of land shall not be alienated and no developments shall be undertaken on the said land by any of the parties
- 7.Each party shall bear their own costs in respect of the three applications
- Jurisdiction invoked
- Inherent powers of the court and Active Case Management principles (Article 159(2)(b) of the Constitution invoked); Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moschion v Stuart & another; Pathmark Ventures Limited (Interested Party) (Environment & Land Case 338 of 2018) [2023] KEELC 511 (KLR)", Case Analysis (2023). ELC Case No. 350 of 2018 (lead file; consolidated with ELC No. 915 of 2012, 305, 338, 367, 368, 374, 348 and 349 all of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/511/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.