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ELCAllowed· [2024] KEELC 1274 (KLR)

Emfil Limited v Attorney General & 423 others; Maluki & 6 others (Proposed Defendant) (Environment & Land Case 113 of 2015) [2024] KEELC 1274 (KLR)

Environment and Land Court
27 February 2024
LNL. L. Naikuni
4,428 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Mombasa ruled that landowners with titles over the same disputed property must be joined to a case affecting their land, even mid-suit.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (L. L. Naikuni, J) determines three Notices of Motion filed by Proposed Defendants seeking to be enjoined as Defendants in a suit concerning land known as Kwale/Ramisi Kinondo Squatter Settlement Scheme. The first applicant, Isaac Mutunga Maluki, deposed that he purchased part of the suit property (L.R No. Kwale/Ramisi Kinondo/Squatter S.S/84) in 2016 for Kshs. 13,200,000, completed due diligence and Land Control Board approvals, took possession, and later discovered a restriction on the parcel occasioned by the present proceedings; he invoked his right to property under Article 40 of the Constitution. The other applicants (including Jennifer Wanjira Kaaria and companies Guestcare Ideal Homes Limited and Adona – Octies Limited, through director Peter Mutuku Musomba) averred they are registered proprietors of portions of the suit land against whom the Plaintiffs seek cancellation and revocation of titles and eviction, yet were never served with the plaint. The Plaintiffs and Defendants did not oppose the applications. Framing two issues (joinder and costs), the court set out the Order 1 framework and principles from Pravin Bowry, Deported Asians Custodian Board, JMK, EG, Meme and Joseph Njau Kingori: a necessary party with an identifiable stake whose presence enables complete adjudication and prevents multiplicity should be joined. Finding the applicants' titles derived from the same suit property and transaction, the court allowed the applications in their entirety, enjoined the Proposed Defendants as Defendants, compelled service of pleadings within 14 days, granted leave to respond, and fixed mention for 23rd May, 2024 and hearing for 27th June, 2024. Costs of the applications were left in the cause to abide the outcome of the main suit.

Key legal issues

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01

Whether the proposed Defendants ought to be enjoined as parties in the suit

Holding

The applications for joinder were allowed; the Proposed Defendants were enjoined as Defendants because their presence is necessary for the court to effectually and completely adjudicate upon the dispute over the suit property.

Reasoning

The court restated that joinder is governed by Order 1 of the Civil Procedure Rules, 2010, may be effected at any stage, and should be declined only where it would cause practical problems, unnecessary delay or cost, or where the proposed cause of action is incompatible with the existing one. Applying the principles in the cited authorities, the court found the applicants hold registered titles derived from the same suit property and transaction, so the court needs all concerned parties before it to determine the real issues and avoid multiplicity of suits.

p. 8
02

Who will bear the costs of the three Notices of Motion

Holding

Costs were left in the cause, to abide the outcome of the main suit, since the suit is still proceeding.

Reasoning

Relying on Section 27 of the Civil Procedure Act, Cap. 21, the court reaffirmed that costs follow the event unless the court for good reason orders otherwise. Because the main matter was still ongoing, the court exercised its discretion to defer the question of costs rather than award them to any party at this interlocutory stage.

p. 9

Legal principles established

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  • Joinder of parties is permitted at any stage of proceedings, and the determining factor is that a common question of fact or law would arise between the existing and intended parties.
  • Costs are at the discretion of the court and ordinarily follow the event unless for good reason the court orders otherwise.

Court orders

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  1. 1.The Notices of Motion applications dated 30th July, 2022, 9th September, 2022 and 20th July, 2023 be and are found to have merit and hence allowed in their entirety
  2. 2.The proposed Defendants/Applicants are hereby enjoined as the Defendants in this suit
  3. 3.The Plaintiffs and the other Defendants are compelled to serve their pleadings on the Defendants/Applicants within 14 days of the Ruling
  4. 4.The Defendants/Applicants are granted leave to respond to the pleadings filed by the Plaintiffs and the earlier Defendants
  5. 5.Mention on 23rd May, 2024 to confirm compliance, and hearing on 27th June, 2024
  6. 6.The costs of the Notices of Motion applications dated 30th July, 2022, 9th September, 2022 and 20th July, 2023 to abide the outcome of the main suit
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21; Order 1 Rules 3 and 10(2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 423 of the Insolvency Act, 2015; Article 159(2) of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Emfil Limited v Attorney General & 423 others; Maluki & 6 others (Proposed Defendant) (Environment & Land Case 113 of 2015) [2024] KEELC 1274 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1274/eng@2024-02-27

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