Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Notice of Motion dated 4th October 2023)· [2024] KEELC 3280 (KLR)

Chisenga & 3 others (Representing over 150 residents residing on LR No 176/IV/MN CR 27920) v Estate of Onesmus Nyamae Kyengo & 3 others; Mwaganda & 3 others (Applicant) (Environment & Land Case 94 of 2022) [2024] KEELC 3280 (KLR)

Environment and Land Court
4 April 2024
4,726 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Mombasa court refused to let four people join a land case because their claim was already decided — their remedy is their pending appeal.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Mombasa (L.L Naikuni J, delivered 4 April 2024) determines a Notice of Motion dated 4 October 2023 by four intended interested parties seeking joinder in proceedings between David Chome Chisenga (1st Plaintiff/Respondent) and Daniel Katumo Nyamai (1st Defendant/Respondent), administrator of the estate of the late Onesmus Nyamai Kyengo. The applicants, who occupy Plot No. 176/IV/MN CR No. 27920, relied on a Ministry of Lands ground report and contended that any orders would prejudice them since they claim entitlement by adverse possession. Both respondents opposed, noting the applicants' claim had already been rejected in Malindi ELC No. 183 of 2013 (Olola J, 18 September 2020), where they were declared trespassers, permanently enjoined and given 90 days to vacate, with an appeal pending in Malindi Court of Appeal Civil Appeal No. E13 of 2020, and contempt proceedings ongoing. The court framed three issues: joinder, entitlement to orders, and costs. Applying Order 1 Rule 10(2) and authorities including Communications Commission of Kenya v Royal Media Services, Meme v Republic and Pravin Bowry v John Ward, the court held the applicants' interest had been finally determined, that joinder would amount to sitting on appeal over a court of equal status, and that their proper forum is the pending appeal. The application was dismissed with costs to both respondents.

Key legal issues

#
01

Whether the applicants should be joined as interested parties

Holding

The application was dismissed; the applicants failed to meet the threshold for joinder as their interest in the suit property was already adjudicated upon in Malindi ELC No. 183 of 2013

Reasoning

The court applied the settled principles from Muruatetu, Communications Commission of Kenya, Meme v Republic and other authorities. It found the applicants' adverse possession claim was rejected in ELC No. 183 of 2013 where they were declared trespassers and ordered to vacate. Enjoining them would amount to sitting on appeal over a decision of a court of equal status. Their remedy lies in the pending Court of Appeal appeal.

p. 9
02

Whether the applicants are entitled to the orders sought

Holding

Not entitled; their claim amounts to a second bite at the cherry

Reasoning

The court found the same evidence relied on in the joinder application (including the Ministry of Lands ground report) had been presented and rejected in the earlier suit. Joinder cannot be used to relitigate a concluded claim disguised as an interested party application; the applicants must await the outcome of their appeal.

p. 9
03

Who bears the costs of the application

Holding

The 1st Plaintiff/Respondent and 1st Defendant/Respondent are awarded costs

Reasoning

Under Section 27 of the Civil Procedure Act, costs follow the event. The application having failed, the respondents who participated in the proceedings were entitled to costs.

p. 10

Legal principles established

#
  • Joinder of an interested party is discretionary, not automatic, and requires a demonstrable, identifiable and proximate interest not already finally determined by a court of competent jurisdiction
  • A party whose claim has been decided and who has lodged an appeal must pursue that appeal rather than seek joinder as an interested party in a separate suit

Court orders

#
  1. 1.The Notice of Motion application dated 4th October 2023 is dismissed for lack of merit
  2. 2.Costs awarded to the 1st Plaintiff/Respondent and 1st Defendant/Respondent

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 18, 27
  • Civil Procedure Rules, 2010Order 1 Rule 10(2), Order 51 Rule 1, Order 7 Rule 9
  • Constitution of KenyaReferred to generally (misdescribed as 'Constitution of Kenya, 2020')

Cases cited (11)

  • Communications Commission of Kenya and 4 others v Royal Media Services Limited and 7 others
    Petition No. 15 of 2014
  • Francis Muruatetu and anor v Republic & 5 others
    (2016) eKLR
  • Leonard Kimeu Mwathi v Rukaria M'twerandu M'iringu and Nathaniel Kithinji Ikungu & 4 Others
    (2021) eKLR
  • Pravin Bowry v John Ward and Another
    [2015] eKLR
  • Deported Asians Custodian Board v Jafier Brothers Ltd
    [1999] 1 E.A. 55 (SCU)
  • JMK v MWM & another
    [2015] eKLR
  • Central Kenya LTD v Trust Bank & 4 others
    CA No. 222 of 1998
  • EG v Attorney General; David Kuria Mbote & 10 others (Interested Parties)
    [2021] eKLR
  • Hamisi Yawa & 36,000 others v Tsangwa Ngala Chome & 19 others
    [2018] eKLR
  • Meme v Republic
    [2004] 1 EA 124
  • Joseph Njau Kingori v Robert Maina Chege & 3 others
    [2002] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 18 of the Civil Procedure Act, Cap. 21; Orders 1 Rule 10(2) and 51 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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, "Chisenga & 3 others (Representing over 150 residents residing on LR No 176/IV/MN CR 27920) v Estate of Onesmus Nyamae Kyengo & 3 others; Mwaganda & 3 others (Applicant) (Environment & Land Case 94 of 2022) [2024] KEELC 3280 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 4th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3280/eng@2024-04-04

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