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ELCDismissedEnvironment & Land Case 37 (E033) of 2021· [2023] KEELC 17006 (KLR)

Masinjila (Suing as the legal representative of the Estate of Joshua Andala Masinjira (Deceased)) v Solmat Enterprises & 2 others; Kamau (Proposed Interested Party) (Suing on behalf of the Catholic Diocese of Kitale)

Environment and Land Court of Kenya
25 April 2023
FNFred Nyagaka
4,025 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale refused to let a man join a land case on behalf of the Catholic Diocese of Kitale because he was not an official of the society.

What this practically means

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Executive summary

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The proposed interested party, John Muiyuro Kamau, moved the Environment and Land Court at Kitale under Order 40 rules 1 and 2 and Order 1 rule 10(2) of the Civil Procedure Rules seeking to enjoin the Catholic Diocese of Kitale in the proceedings and to stay the suit pending determination of Kitale ELC No. 71 of 2020, in which the Diocese claims adverse possession over LR Kitale Municipality Block 3/333, the same land in issue here. The plaintiff and the 1st defendant opposed, contending the applicant lacked locus standi because a society registered under the Societies Act can only sue through its officials, that he had not met the joinder threshold, and that substantive orders could not be granted to a non-party. The court framed five issues. It rejected the objection to the supporting affidavit under Order 19 rule 3(1), finding the deponent stated facts within his own knowledge. It held that a proposed interested party who has not been enjoined is a stranger to the proceedings and cannot obtain substantive orders, rendering the stay prayer incompetent and premature. On joinder, the court found no legal basis for a registered society to delegate authority to sue to a non-official by resolution, and declined the joinder as it would permit an illegality. The application dated 02/06/2022 was dismissed with costs to the respondents, and the matter was set for virtual mention on 26/04/2023 for further directions.

Key legal issues

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01

Whether the supporting affidavit offended Order 19 rule 3(1) of the Civil Procedure Rules

Holding

Ground failed; the affidavit contained facts within the deponent's own knowledge and the 1st defendant did not specify any offending paragraph

Reasoning

The 1st defendant did not submit on how the affidavit fell short of the sub-rule or the consequences of any breach, nor specify which paragraphs offended the provision. The court found the affidavit contained facts within the applicant's knowledge, satisfying the rule that affidavits be confined to facts the deponent can prove of his own knowledge.

p. 5
02

Whether the prayer for stay of proceedings was competent

Holding

Incompetent and premature; a proposed interested party is a stranger who cannot move the court substantively before being enjoined

Reasoning

Under Rule 7(1) of the Mutunga Rules, joinder as an interested party requires leave of the court. Until leave is granted, the applicant is a stranger with neither the rights nor duties of a party. Only parties may move the court substantively. Granting substantive orders to a stranger risks abuse of process if joinder is ultimately not made.

p. 6
03

Whether the applicant had locus standi and whether joinder was merited

Holding

Joinder declined; the Catholic Diocese of Kitale, a society registered under the Societies Act, can only be represented by its officials, and the applicant was not one

Reasoning

The applicant relied on a resolution/minutes nominating him as a representative of the Diocese. The court found no legal provision permitting a registered society to delegate authority to sue or be sued to persons other than its officials. Permitting the joinder would be permitting an illegality, so the prayer for joinder was declined.

p. 7

Legal principles established

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  • A proposed interested party who has not yet been enjoined is a stranger to the proceedings and cannot obtain substantive orders before joinder
  • A society registered under the Societies Act can only sue or be sued through its officials, and cannot delegate that authority by resolution to a non-official

Court orders

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  1. 1.The application dated 02/06/2022 is refused and dismissed with costs to the respondents
  2. 2.The matter to be mentioned virtually on 26/04/2023 at 8.30 am for further directions

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 rules 1 and 2
  • Civil Procedure Rules, 2010Order 1 rule 10(2)
  • Civil Procedure Rules, 2010Order 19 rule 3(1)
  • Civil Procedure Actsections 1A, 1B, 3, 3A and 63(e)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2 and 7(1)
  • Societies Act

Cases cited (12)

  • Aharub Ebrahim Khatiri v Nelso Marwa
    [2017] eKLR

    A proposed interested party needs only to demonstrate an interest in the subject matter of the suit

  • Francis Karioki Muruatetu & another v Republic & 5 others
    [2016] eKLR; Petition 15 as consolidated with 16 of 2013

    Three principles for successful application for joinder as an interested party

  • Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others
    [2014] eKLR

    Definition of who an interested party is

  • Meme v Republic
    [2004] 1 E.A. 124

    A party may be enjoined to ensure complete settlement of questions, protect rights and prevent proliferation of litigation

  • Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others
    [2017] eKLR

    Test for enjoining an interested party - effect on subject matter if applicant's rights established; interest must be legal and identifiable

  • Shivling Supermarket vs. Jimmy Ondicho Nyabuti & 2 others
    [2018] eKLR

    Test for joinder - identifiable interest in subject matter and necessity for effectual adjudication

  • Mukoma wa Njiri v. National Land Commission & another; Jimna Njuguna Kimunya & another (Interested Party)
    [2021] eKLR

    Injunction available only to a party who has filed suit or counterclaim and must demonstrate a prima facie case

  • Mrao Ltd v. First American Bank of Kenya Ltd & 2 others
    [2003] eKLR

    Definition of prima facie case (cited within Mukoma wa Njiri)

  • Law Society of Kenya v Commissioner of Lands & others, Nakuru High Court Civil Case No.464 of 2000

    Locus standi signifies a right to be heard; sufficiency of interest to sustain standing

  • Alfred Njau and Others v City Council of Nairobi
    (1982) KAR 229

    Locus standi means a right to appear in court and be heard

  • Joseph Muriuki Kithinji v Peterson Ireri Mwaniki & 3 others
    [2021] eKLR

    A claim of lack of locus standi is a pure point of law to be determined at the earliest

  • Peter Ngugi Geoffrey and 3 others vs Muthini SDA Church
    (2019) eKLR

    A non-juristic society registered under the Societies Act can only sue or be sued through its officials

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Order 40 rules 1 and 2 and Order 1 rule 10(2) of the Civil Procedure Rules, 2010 and sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Masinjila (Suing as the legal representative of the Estate of Joshua Andala Masinjira (Deceased)) v Solmat Enterprises & 2 others; Kamau (Proposed Interested Party) (Suing on behalf of the Catholic Diocese of Kitale)", Case Analysis (2023). Environment & Land Case 37 (E033) of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17006/eng@2023-04-25

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