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ELCPartially AllowedELC Appeal (Voi) – Memorandum of Appeal dated 19th June 2023 (from Voi ELC No. E055 of 2021)· [2024] KEELC 1356 (KLR)

Mjomba v Mwabora; Mkalla & 9 others (Third party) (Environment and Land Appeal E002 of 2024) [2024] KEELC 1356 (KLR)

Environment and Land Court of Kenya
5 March 2024
11,140 words in judgment
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The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Mombasa against the ruling of Hon. T. N. Sinkiyian (P.M) delivered at Voi on 31st May 2023 in Voi ELC No. E055 of 2021 (Rozilin Mwae Mwabora v Othaniel Mjomba), which dismissed the Appellant's application dated 11th October 2022 seeking leave to issue and serve third party notices on nine intended third parties allegedly occupying the suit property with the Respondent's authority. The Appellant also faulted the trial court for failing to determine his Notice of Preliminary Objection challenging the Respondent's Replying Affidavit and the authority of her advocates to act for some intended third parties. Both parties filed written submissions. The Court, re-evaluating the record as required on a first appeal, condensed the matter into three issues: merit of the appeal, entitlement to relief, and costs. It held the preliminary objection lacked merit, since conflict of interest must be proved by affidavit and cannot be raised as a preliminary objection, and no defect in the exhibits was shown. However, the Court found the trial magistrate misdirected herself in construing the paragraphs of Order 1 Rule 15 of the Civil Procedure Rules conjunctively and in entertaining the plaintiff's arguments on what is an ex parte chamber application, contrary to the fair hearing guarantees of Articles 25(c), 47 and 50(1) and (2) of the Constitution. Finding a triable issue between the Defendant and the intended third parties and no prejudice to the Respondent, the Court allowed the appeal, set aside the ruling of 31st May 2023, substituted an order allowing the application of 11th October 2022, directed that a third party notice issue under Order 1 Rule 15, and awarded the Appellant the costs of both the application and the appeal, with a mention on 3rd April 2024.

Key legal issues

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01

Whether the trial court erred in failing to determine the Appellant's Notice of Preliminary Objection and in considering the Respondent's challenged documents

Holding

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

Reasoning

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.

p. 14
02

Whether the trial court erred in dismissing the application dated 11th October 2022 for leave to issue and serve third party notices

Holding

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

Reasoning

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.

p. 17
03

Whether the trial court's entertaining of the plaintiff's arguments on the ex parte third party application offended fair hearing

Holding

Yes; the plaintiff's participation was unnecessary in the ex parte application and entertaining her main issues at that interlocutory stage was improper

Reasoning

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.

p. 16
04

Entitlement to relief and costs

Holding

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

Reasoning

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.

p. 18

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.The matter to be mentioned on 3rd April 2024 before the Deputy Registrar, Environment & Land Court at Voi for further directions
  5. 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

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 15
  • Civil Procedure Rules, 2010Order 1 Rule 17
  • Civil Procedure Rules, 2010Order 1 Rule 22
  • Oaths and Statutory Declaration Act/Rules, Cap 15Section 9
  • Constitution of Kenya, 2010Articles 25(c), 47, 50(1) and (2)
  • Civil Procedure Act, Cap 21Section 27(1)
  • The Law Society of Kenya Code of Standards, 2016Clause 96

Cases cited (11)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Omwenga Omache & Another v Zachary O. Ayieko & Others
    [2016] eKLR
  • Humphrey Mbaka Nandi T/A Nyati Distillers Limited v Equity Bank (K) Limited & 2 Others
    [2018] eKLR
  • KCB v Suntra Investment Bank Ltd
    [2015] eKLR
  • Kingori v Chege & 3 Others
    [2002] 2 KLR 243
  • Kenya Ports Authority v Kuston (Kenya) Ltd
    [2009] 2 EA 212
  • Peter v Sunday Post Limited
    [1958] E.A. 424
  • Fredrick Mwangi Nyaga v Garam Investments & Another
    [2013] eKLR
  • Abraham Mwangi v S. O Omboo & Others
    HCCC No. 1511 of 2002
  • Kanake Peter v David Lemba Mbuli & 2 others
    [2018] eKLR
  • Oceanfreight (EA) Ltd v Technomatic Ltd & Another
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

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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, "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.