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ELCAllowedEnvironment and Land Case Civil Suit 166 of 2018· [2023] KEELC 19934 (KLR)

Mary Njeri Njuguna (Suing as the legal administratrix and personal representative of the Late Joel Njuguna Mbugua) & 4 others v SS Mehta & Sons Limited

Environment and Land Court
22 September 2023
EME. K. Makori
2,702 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi (E.K. Makori, J) determined a notice of motion dated March 17, 2022 by intended interested parties seeking to be joined as interested parties or defendants in a suit in which the plaintiffs, as legal administrators of two estates, seek general and exemplary damages from SS Mehta & Sons Limited for alleged illegal sand extraction on land known as L.R. No. 2109 (M20/2) Malindi. The applicants claimed ancestral ownership of the suit property, occupation since time immemorial, and that they leased it to the defendant for sand harvesting; they had also filed ELC No E5 of 2021 (OS) seeking 20 acres of the property by adverse possession. The defendant supported joinder and proposed consolidation of the two suits. The plaintiffs opposed, arguing the applicants cited no enabling provision, that the defendant's defence showed it dealt with the applicants on a different parcel (Plot No. M20 Quarry 5 MLD-KLF), and that the applicants had no identifiable stake. Applying the Muruatetu interested-party principles and the joinder tests in Kingori v Chege, Departed Asians Property Custodian Board and Civicon, the court held the applicants demonstrated a proximate interest, that any decree would directly affect them and could not be enforced without their participation, and that joinder would avoid multiplicity of suits. The disputed property description was left for trial. The application was allowed, the intended interested parties admitted, directions on the pending consolidation application were ordered, with costs in the cause.

Key legal issues

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01

Joinder of interested parties

Holding

The intended interested parties met the Muruatetu threshold and the Order 1 rule 10(2) principles: they are necessary and proper parties whose presence is needed for effective adjudication

Reasoning

The applicants claimed ancestral ownership of the suit property, occupation since time immemorial, and that they leased it to the defendant for sand harvesting. They had filed a parallel adverse possession suit over 20 acres. Any decree would directly affect them and could not be enforced without their participation, and joinder avoids multiplicity of suits.

p. 5
02

Disputed property description

Holding

The dispute over whether the property in the joinder application matches the plaintiffs' property is a matter for trial

Reasoning

The plaintiffs argued the land the defendant dealt on (Plot No. M20 Quarry 5 MLD-KLF) differs from their parcel (L.R. 2109 (M20/2) Malindi). The defendant admitted it was the land in contestation in both suits. The court held the description issue could be resolved at trial and did not defeat joinder.

p. 5

Legal principles established

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  • Enjoinment as an interested party is discretionary and requires a formal application demonstrating a clear, proximate personal interest, prejudice from non-joinder, and the case the applicant intends to make

Court orders

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  1. 1.The application dated March 17, 2022 is allowed and the intended interested parties are admitted to the proceedings
  2. 2.Directions be taken on the pending application for consolidation in the presence of all parties
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 1 rule 10(2)
  • Civil Procedure Actsections 1A, 1B and 3A

Cases cited (10)

  • AG v David Ndii & 73 others
    [2021] KESC 17 (KLR) (9 November 2021)
  • Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others
    SC Petition (Application) No 12 of 2013
  • Judicial Service Commission v Speaker of the National Assembly & another
    [2013] eKLR
  • Hope v Director of Survey & 2 others; Sakaja & others (Interested Party)
    [2022] KEELC 6 (KLR) (4 May 2022) (Ruling)
  • Japthet Muroko & another v Independent Electoral and Boundaries Commission & 3 others
    [2017] eKLR

    Elucidated the legal principles for joinder as an interested party as stated by the Supreme Court in Muruatetu

  • Francis Karioki Muruatetu & anor v Republic & 5 others
    Petition No. 15 & 16 of 2016 [2016] eKLR

    Set out the principles applicable in considering whether a person qualifies to be joined as an interested party

  • Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff)
    [2022] eKLR

    Restated tests for joinder of a party, including Kingori v Chege and Departed Asians Property Custodian Board principles

  • Kingori v Chege & 3 others
    [2002] 2 KLR 243

    Guiding principles when an intending party is to be joined (necessary/proper party tests)

  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd
    [1999] 1 EA 55

    Distinction between joining a party who ought to have been joined and one whose presence is necessary for effectual adjudication

  • Civicon Limited v Kivuwatt Limited and 2 others
    [2015] eKLR

    Joinder power is discretionary; any party reasonably affected by pending litigation is a necessary and proper party

Jurisdiction invoked
Order 51 of the Civil Procedure Rules and sections 1A, 1B 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, "Mary Njeri Njuguna (Suing as the legal administratrix and personal representative of the Late Joel Njuguna Mbugua) & 4 others v SS Mehta & Sons Limited", Case Analysis (2023). Environment and Land Case Civil Suit 166 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19934/eng@2023-09-22

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