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ELCPartially AllowedEnvironment and Land Constitutional Petition E027 of 2022· [2023] KEELC 20832 (KLR)

Singh v Kenya Ports Authority & 3 others

Environment and Land Court
12 October 2023
LNL. L. Naikuni
8,652 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed Kenya Ports Authority to bring two road and rail agencies into a land compensation case, saying all key players must be present for a fair decision.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (Naikuni J) disposed of a Chamber Summons application dated 20th April 2023 by the 1st Respondent, Kenya Ports Authority, in a constitutional petition by Baljeet Singh, the registered owner of Plot MN/VI/2444, seeking compensation and other remedies for the alleged unlawful occupation of his land during implementation of the Mombasa Port Development Project. KPA sought the joinder of Kenya National Highways Authority and Kenya Railways Corporation as 3rd and 4th Respondents, deeming its draft Amended Response filed, and leave to amend pleadings. KPA argued the two agencies were lead acquiring agencies whose Gazette Notices concerned the suit property, that no Notice had issued on KPA's behalf, and that their presence was necessary for complete adjudication and to avoid double compensation. The Petitioner opposed, contending he had filed separate Petitions (E009 and E010 of 2023) against the intended parties, that no cause of action lay against them in this Petition, and that the application was a delaying tactic made in bad faith. The court framed three issues: joinder, amendment, and costs. Applying Rule 5 of the Mutunga Rules, Order 1 Rule 10(2) CPR and the joinder principles in Joseph Njau Kingori, JMK v MWM, EG v AG and Meme v Republic, the court found the intended parties necessary for complete settlement of all questions. On amendment it applied Rule 18 of the Mutunga Rules, Order 8 CPR and the Ochieng principles, allowing amendments in the interests of justice. The application was allowed in its entirety: KeNHA and Kenya Railways were joined as 3rd and 4th Respondents, leave to amend granted to all parties with a 14-day timetable, and costs of the application were ordered to abide the outcome of the main Petition.

Key legal issues

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01

Joinder of necessary parties in a constitutional petition

Holding

The joinder of KeNHA and Kenya Railways Corporation was merited as they were lead acquiring agencies in the MPDP and SGR projects affecting the suit land and their presence enables complete settlement of all questions

Reasoning

The court applied Rule 5 of the Mutunga Rules and Order 1 Rule 10(2) CPR, plus the principles in JMK v MWM, EG v AG, Meme v Republic and Joseph Njau Kingori. The intended parties were extensively mentioned in the pleadings and evidence; Gazette Notices were published on their behalf, none on behalf of the 1st Respondent, so their presence was necessary to conclusively determine compensation.

p. 13
02

Amendment of pleadings

Holding

The 1st Respondent's prayer to amend its Response was allowed under Rule 18 of the Mutunga Rules and Order 8 CPR, no injustice being shown

Reasoning

The court set out the amendment principles from Ochieng v First National Bank of Chicago, Tildesley v Harper, Eastern Bakery v Castelino and Rubina Ahmed v Guardian Bank. Amendments are intended to determine true substantive merits, may be sought at any stage, and should be allowed if made in good faith where costs compensate the other side. The Petitioner would have corresponding leave to amend.

03

Costs of the application

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act, but the court directed costs of the application to abide the outcome of the main Petition

Reasoning

Costs are at the court's discretion and normally follow the event. Although the applicant succeeded, since the main Petition is still proceeding the court directed costs to be in the cause rather than awarding them immediately.

p. 16

Legal principles established

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  • Joinder of a party is not an automatic right; the court exercises a discretion guided by principles including identifiable proximate interest, necessity for complete adjudication, prejudice and absence of vexation
  • Amendments to pleadings should be freely allowed at any stage if made in good faith and without injustice which cannot be compensated by costs

Court orders

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  1. 1.The Notice of Motion application dated 20th April, 2023 is allowed in its entirety
  2. 2.Kenya National Highways Authority and Kenya Railways Corporation joined as the 3rd and 4th Respondents respectively
  3. 3.1st Respondent granted 14 days leave to amend its Response to the Petition
  4. 4.The annexed Amended Response to Petition deemed duly filed on payment of requisite court fees
  5. 5.3rd and 4th Respondents to file their response to the Petition within 14 days
  6. 6.Petitioner granted corresponding leave to amend his Petition, file and serve his reply to the Response within 14 days after service
  7. 7.Mention on 6th February, 2024 to confirm compliance and further directions
  8. 8.Costs of the application to abide the outcome of the main Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 22, 23, 40, 47, 162, 165, 201, 249(2), 258, 260
  • Environment and Land Court ActSection 3
  • Land Act, 2012Sections 107, 111, 112, 113, 115, 117
  • Land Acquisition Act Cap. 295 (repealed)Repealed provisions
  • Public Finance Management Act, 2012Section 3
  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3A, 27(1), 63(e), 100
  • Civil Procedure Rules, 2010Order 1 Rules 3, 10(2); Order 8 Rules 1, 3, 5; Order 25
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 2, 5, 18
  • Kenya Roads Act, 2007Section 3

Cases cited (14)

  • Joseph Njau Kingori v Robert Maina Chege & 3 others
    (2002) eKLR

    Guiding principles for joinder of an intending party: necessary party, proper party, relief flowing, decree enforceability, effective adjudication

  • Cuncon Limited v Kivuwatts Limited & 2 Others
    (2015) eKLR

    Joinder under Order 1 Rule 10(2) is discretionary; party need only demonstrate sufficient interest in the suit

  • Julius Meme v Republic and Another
    (2004) 1 EA 124; Misc. Criminal App. No. 495 of 2003

    Reasons for joinder: complete settlement of questions, protection of rights, prevention of proliferated litigation

  • JMK v MWM & another
    [2015] eKLR

    Amendments and joinder should be freely allowed at any stage absent prejudice not compensable by costs

  • Central Kenya Ltd v Trust Bank & 4 Others
    CA No. 222 of 1998

    Guiding principle that amendments/joinder should be freely allowed unless causing uncompensable prejudice

  • EG v Attorney General; David Kuria Mbote & 10 others (Interested Parties)
    [2021] eKLR

    Court's power to join a necessary party; joinder is discretionary within defined parameters

  • Hamisi Yawa & 36,000 others v Tsangwa Ngala Chome & 19 others
    [2018] eKLR

    Core of the court's power to join a party is to bring on board a necessary party for determining the real issues

  • Joseph Ochieng and 2 others trading as Acquiline Agencies v First National Bank of Chicago
    Civil Appeal Number 147 of 1991; (1995) eKLR

    Principles for amendment of pleadings: timely, good faith, no inconsistent cause of action, no injustice

  • Lakhamshi Ktumji Shah and Another v Ajay Shanlilal Shah and 2 others
    Nbi. HCR Civil No. 2715 of 1987

    Amendment applications should be timely, in good faith, and cause no injustice

  • Tildesley v Harper
    (1878), 10 Ch.D. 296

    Leave to amend should be given unless the applicant acts mala fide or causes injury not compensable by costs

  • Eastern Bakery v Castelino
    (1958) E.A. 461 (U.)

    Amendments before hearing should be freely allowed if no injustice beyond costs

  • Rubina Ahmed & 3 others v Guardian Bank Ltd
    [2019] eKLR

    Purpose of amendment is to facilitate determination of the real question; applicant must act in good faith

  • Jasbir Rai Singh v Tarchalan Singh
    (2014) eKLR

    Costs are at the court's discretion and follow the event

  • Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited
    (2014) eKLR

    Costs follow the event unless the court has good reason to order otherwise

Jurisdiction invoked
Article 22, Articles 10, 19, 20, 23, 40, 47, 162, 165 and 258 of the Constitution; Section 13 of the Environment and Land Court Act, 2012

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, "Singh v Kenya Ports Authority & 3 others", Case Analysis (2023). Environment and Land Constitutional Petition E027 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20832/eng@2023-10-12

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