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ELCDismissedEnvironment and Land Appeal 12 of 2021· [2023] KEELC 17031 (KLR)

Silverspoon Restaurant Limited v Gohl & 2 others

Environment and Land Court
25 April 2023
2,518 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to let outsiders join an appeal, confirming only parties from the original case can be added.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (S. M. Kibunja, J) determines a notice of motion dated November 9, 2022 by Shabbir Nasir Jamal and Zainabsalim Nassor, former directors of the appellant company, seeking (a) joinder in the appeal as respondents, (b) alternatively consolidation of ELCA No 12 of 2021 and E38 of 2022 with this appeal, and (c) further alternatively, stay of proceedings in CMCC Nos 1106 of 2013 and 51 of 2018 to prevent their committal to civil jail for rent/mesne profits. The application was brought under Order 42 Rule 22 of the Civil Procedure Rules and sections 1A and 3A of the Civil Procedure Act, with counsel invoking Order 1 Rule 10 and Indian authorities urging a liberal approach to joinder. The respondents opposed, contending the applicants were strangers to the appeal, were not parties to the suit whose decree was under appeal, and that the application was an abuse of process. The court held that Order 42 Rule 22 applies only to persons who were parties to the suit in the lower court but omitted from the appeal; the applicants did not qualify. Their interests were best pursued in suits where they are already parties. Common issues justifying consolidation were not demonstrated, and the stay application should first have been made to the trial court. The motion was dismissed with costs to the respondents under section 27 of the Civil Procedure Act.

Key legal issues

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01

Joinder of non-parties to an appeal under Order 42 Rule 22 and Order 1 Rule 10

Holding

The applicants, not having been parties to the original suit CMCC No 51 of 2018, fall outside Order 42 Rule 22 and are not necessary parties for the effectual determination of the appeal

Reasoning

The court read Order 42 Rule 22 literally: it covers persons who were parties to the suit in the lower court but were not made parties to the appeal. The applicants admitted they were not parties to CMCC No 51 of 2018. The appellant company has capacity to sue in its own name, and nothing in the appeal suggested substitution or that the applicants' presence was necessary. Their interests are best pursued in suits where they are already parties.

p. 4
02

Consolidation of appeals

Holding

Consolidation refused because common issues were not demonstrated

Reasoning

The applicants asserted common issues across the appeals, but the respondents disputed this and relied on a prior decision in which stay was refused for lack of privity of contract. The court found the applicants failed to demonstrate common issues that would justify consolidating the appeals, and that the ends of justice would not be better served by consolidation.

p. 5
03

Stay of subordinate court proceedings

Holding

Refused as the proper forum is the trial court

Reasoning

The applicants feared committal to civil jail over rent/mesne profits. The court held that an application for stay of proceedings before the subordinate court should in the first instance be made to that trial court, and a dissatisfied party may then appeal to the High Court. The applicants gave no reason why the alternative prayer should be entertained here.

Legal principles established

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  • Order 42 Rule 22 applies only to persons who were parties to the suit in the court whose decree is appealed and are interested in the result of the appeal
  • A party seeking stay of proceedings in a subordinate court should first apply to that trial court before approaching the appellate court

Court orders

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  1. 1.The applicants' notice of motion dated November 9, 2022 is without merit and is dismissed
  2. 2.The applicants to pay the respondents' costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 22
  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 27
  • Indian Civil Procedure CodeOrder 41 Rule 20

Cases cited (6)

  • Departed Asian Property Custodian Board versus Jaffer Brothers
    (1999) 1EA 55

    Cited by applicants on joinder of parties to appeals

  • Baluswami Aiyar versus Lakshmana Aiyar
    (1921) 44 Mad. 605, 63 1C 374, (1921) AM 172 [FB]

    Power to add parties to appeals under Order 41 Rule 20 Indian CPC, in pari materia with Order 42 Rule 22

  • Shiam Lal Dhanpat Rai
    [1925] 47 All. 853, 88 1C 493, [1925] AA 768

    Appeal court cannot add a party who was not a party in the suit

  • Kivanga Estate Ltd versus National Bank of Kenya Ltd
    [2017] eKLR

    Court's duty to prevent abuse of process by subsequent proceedings

  • Communications Commission of Kenya & 3 others versus Royal Media Services Ltd & 7 others
    [2014] eKLR

    Discretion not to enjoin a party disguising itself as interested party to institute a fresh cause

  • Shabbir Nassir Jamal & another versus Vrajkunver Manilal Gohil & 2 others
    [2015] eKLR

    Prior finding that applicants had no privity of contract and stay of proceedings was declined

On appeal from
Chief Magistrate's Court at Mombasa
CMCC No 51 of 2018
Jurisdiction invoked
Order 42 Rule 22 of the Civil Procedure Rules; sections 1A and 3A of the Civil Procedure Act

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, "Silverspoon Restaurant Limited v Gohl & 2 others", Case Analysis (2023). Environment and Land Appeal 12 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17031/eng@2023-04-25

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