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ELCPartially AllowedApplication dated 12th July, 2023 in ELC Suit (Mombasa) relating to the estate of Salmin Khamis Bin Salman (suit property MN/IV/86/R and MN/IV/23)· [2024] KEELC 1360 (KLR)

Khamis & another (Administrator of the Estate of Salmin Khamis Bin Salman) v Omar (Trustee of the Estate Of Malim Bin Hero) & 5 others (Environment & Land Case 247 of 1964 & 265 of 1967 (Consolidated)) [2024] KEELC 1360 (KLR)

Environment and Land Court
7 March 2024
5,962 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court in Mombasa allowed 28 occupants to join a long-running land dispute as interested parties, but made everyone pay their own costs.

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 a Notice of Motion dated 12th July 2023 by 28 intended interested parties seeking to be enjoined in a land dispute concerning parcels MN/IV/86/R and MN/IV/23 at Mtwapa, Kilifi County. The applicants, most of whom live on portions arising from subdivisions of the suit property or the adjacent Plot MN/IV/151, claimed the plaintiffs (Mohamed Salmin Khamis and Ramla Salmin Khamis) had knowingly left them out of the suit and feared eviction if the plaintiffs obtained a decree. They also challenged the plaintiffs' capacity as administrators of the estate of Salmin Khamis Bin Salman. The plaintiffs opposed, arguing the applicants occupied an adjacent plot unlawfully, had no stake in the suit properties, and that their grievances belonged to pending Malindi ELC No. 135 of 2018. The court framed three issues: merit, entitlement to relief, and costs. Restating the definition of an interested party from the Mutunga Rules and applying the Supreme Court's Muruatetu criteria, the court found the applicants had demonstrated an identifiable stake and prejudice. Although it acknowledged that Order 1 Rule 10(2) ordinarily contemplates joinder before judgment, the court, in the interest of justice and considering the age of the matter (1964), allowed the application in its entirety. The 28 applicants were joined as interested parties, given 14 days to respond to the plaintiffs' pending application of 22nd February 2023, with the plaintiffs allowed 7 days to file supplementary affidavits. The matter was set for mention on 8th May 2024, and each party was directed to bear its own costs.

Key legal issues

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01

Whether the 28 intended interested parties met the threshold for joinder

Holding

They met the Muruatetu threshold and were enjoined as interested parties in the interest of justice

Reasoning

The court restated the Muruatetu criteria: a clearly identifiable personal interest proximate enough to stand apart from the peripheral, demonstrable prejudice on non-joinder, and a case the applicant intends to make. The applicants claimed occupation of portions of the suit property and challenged the plaintiffs' capacity as administrators. Considering the age of the matter (1964) and the interest of justice, the court found the threshold satisfied and allowed joinder, reserving power to strike out their participation if it became an impediment.

p. 11
02

Whether joinder as interested parties is permissible after judgment

Holding

The court acknowledged that Order 1 Rule 10(2) envisages joinder before hearing and determination, but nonetheless allowed the joinder in the circumstances

Reasoning

The court observed that Order 1 Rule 10(2) provides for joinder of a party as plaintiff or defendant where the suit has not been heard and determined, and that after judgment a party cannot ordinarily be enjoined unless the judgment is reviewed or set aside. However, the court invoked the liberal interpretation of the provision and the Mutunga Rules' joinder procedure, and in the interest of justice, taking the age of the matter, proceeded to allow the application despite the procedural difficulty.

p. 10
03

Who bears the costs of the application

Holding

No costs awarded; each party to bear their own costs

Reasoning

Applying Section 27 of the Civil Procedure Act, costs ordinarily follow the event unless the court for good reason orders otherwise. Given the unique facts of the case, the court declined to award costs of the application and directed that each party bear their own costs.

p. 12

Legal principles established

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  • An interested party is one with an identifiable stake or legal interest or duty in the proceedings who is not already a party
  • Where judgment has been entered, a party cannot be enjoined to proceedings unless the judgment is reviewed or set aside to accommodate their participation
  • Costs follow the event under Section 27 of the Civil Procedure Act unless the court for good reason orders otherwise

Court orders

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  1. 1.The Notice of Motion application dated 12th July, 2023 by the Intended Interested Parties is found to have merit and is allowed in its entirety
  2. 2.The 28 named persons are joined as Interested Parties in the suit
  3. 3.Leave granted to the 28 Interested Parties to file and serve responses to the pending application dated 22nd February, 2023 filed by the Plaintiffs within 14 days of delivery of the ruling
  4. 4.The Plaintiffs granted 7 days corresponding leave to file and serve a Supplementary Affidavit, if necessary, on new issues raised from the replies
  5. 5.Matter to be mentioned on 8th May, 2024 to ascertain compliance and for further directions on delivery of the final ruling
  6. 6.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3A, 6, 63, 27(1)
  • Civil Procedure Rules, 2010Order 1 Rule 10(2), Order 51
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules), Legal Notice No. 117 of 2013Rule 2, Rule 7 (Part II Clause 7)
  • Constitution of Kenya, 2010not specified

Cases cited (9)

  • Kenya Medical Laboratory Technicians and Technologists Board and 6 Others v Attorney General and 4 Others
    [2017] eKLR
  • Habiba W. Ramadhan & 7 Others v Mary Njeri Gitiba
    [2017] eKLR, Nairobi High Court ELC No. 119 of 2014
  • Communications Commission of Kenya and 4 Others v Royal Media Services Limited & 7 Others
    Petition No. 15 of [2014] eKLR
  • Meme v. Republic
    [2004] 1 EA 124
  • Francis K. Muruatetu and another v Republic & 5 others
    Petition 15 as consolidated with 16 of 2013 [2016] eKLR
  • Onyango v Attorney General
    (1987-1989) E.A 456
  • Mbaki & Others v Macharia & Another
    [2005] E.A 206
  • JMK v MWM & another
    [2015] eKLR
  • Temple Point Resort Limited v Accredo A G & 5 others
    [2018] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A, 6, 63 of the Civil Procedure Act, Cap. 21, and Order 1 Rule 10 and Order 51 of the Civil Procedure Rules, 2010

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, "Khamis & another (Administrator of the Estate of Salmin Khamis Bin Salman) v Omar (Trustee of the Estate Of Malim Bin Hero) & 5 others (Environment & Land Case 247 of 1964 & 265 of 1967 (Consolidated)) [2024] KEELC 1360 (KLR)", Case Analysis (2024). Application dated 12th July, 2023 in ELC Suit (Mombasa) relating to the estate of Salmin Khamis Bin Salman (suit property MN/IV/86/R and MN/IV/23). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1360/eng@2024-03-07

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