Mjomba v Mwabora; Mkalla & 9 others (Third party) (Environment and Land Appeal E002 of 2024) [2024] KEELC 1356 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a defendant to bring nine third parties into a land dispute, ruling that applications for third party notices should be heard without the plaintiff's involvement.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in failing to determine the Appellant's Notice of Preliminary Objection and in considering the Respondent's challenged documents
The preliminary objection dated 6th February 2023 lacks merit; the alleged conflict of interest was not proved and the exhibits and Replying Affidavit disclosed no defect
The Court examined Clause 96 of the Law Society of Kenya Code of Standards, 2016 and held conflict of interest is a matter of fact to be alleged and proved by affidavit, not a preliminary objection. On the Section 9 Oaths and Statutory Declarations Act point, the Court reviewed the record and found no problem with the exhibits or the Replying Affidavit filed by the Respondent's firm.
Whether the trial court erred in dismissing the application dated 11th October 2022 for leave to issue and serve third party notices
The dismissal was erroneous; the paragraphs of Order 1 Rule 15 are distinct, there is a triable issue between the Defendant and the third parties, and no prejudice would be suffered by the Respondent
The Court held the trial magistrate misdirected herself by confining her determination to whether the third party's claim was interlinked with the plaintiff's claim. A mere mention of the need for contribution or indemnity connected to the subject matter of the suit was sufficient basis to grant the order. The claim raises triable issues requiring intensive adjudication.
Whether the trial court's entertaining of the plaintiff's arguments on the ex parte third party application offended fair hearing
Yes; the plaintiff's participation was unnecessary in the ex parte application and entertaining her main issues at that interlocutory stage was improper
Order 1 Rule 15(c) provides that the application for leave to issue a third party notice is made ex parte in chambers. The ruling shows the plaintiff was involved and opposed it. The Court held this violated the fair hearing guarantees of Articles 25(c), 47 and 50(1) and (2) of the Constitution.
Entitlement to relief and costs
The Appellant is entitled to the reliefs sought; the appeal succeeds with costs, costs following the event under Section 27(1) of the Civil Procedure Act
The Court found that failure to join parties directly or indirectly affected by the suit risks res judicata and multiplicity of suits, and the fair hearing provisions of the Constitution entitled the Appellant to ventilate his grievance in the same proceedings. Costs follow the event under the proviso to Section 27(1) of the Civil Procedure Act.
Legal principles established
#- A first appellate court has the duty to re-analyse, re-evaluate and re-consider the evidence and proceedings before the trial court
- Conflict of interest must be clearly demonstrated by affidavit and cannot be raised as a preliminary objection
- The paragraphs of Order 1 Rule 15 of the Civil Procedure Rules are distinct scenarios and ought not be construed conjunctively
- A plaintiff's participation is unnecessary in the hearing of an ex parte application for leave to issue a third party notice; entertaining the plaintiff's main arguments at that interlocutory stage was improper
Court orders
#- 1.The appeal filed through a Memorandum of Appeal dated 19th June 2023 and Record of Appeal dated 26th June 2023 be and are hereby found to have merit and is allowed with costs
- 2.The order and ruling delivered by Hon. T. N. Sinkiyian on 31st May 2023 dismissing the application dated 11th October 2022 be and is hereby set aside and substituted with an order allowing the application dated 11th October 2022
- 3.A third party notice shall issue at the Appellant's instance to the nine named intended third parties under Order 1 rule 15 of the Civil Procedure Rules, 2010 and the sequential mechanisms under Order 1 Rule 15 to Order 1 Rule 22 shall be effected
- 4.The matter to be mentioned on 3rd April 2024 before the Deputy Registrar, Environment & Land Court at Voi for further directions
- 5.Costs of both the application dated 11th October 2022 in the trial court and of the appeal awarded to the Appellant, borne by the Respondent
- On appeal from
- Principal Magistrate's Court at Voi (ELC No. E055 of 2021)
- Voi ELC No. E055 of 2021
- Jurisdiction invoked
- First appeal to the Environment and Land Court under the Environment and Land Court Act from the subordinate court (Articles 25(c), 47 and 50(1) and (2) of the Constitution of Kenya, 2010 invoked on fair hearing)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Mjomba v Mwabora; Mkalla & 9 others (Third party) (Environment and Land Appeal E002 of 2024) [2024] KEELC 1356 (KLR)", Case Analysis (2024). ELC Appeal (Voi) – Memorandum of Appeal dated 19th June 2023 (from Voi ELC No. E055 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1356/eng@2024-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.