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ELCDismissedNot stated in the judgment ( Notice of Motion dated 22nd November 2023)· [2024] KEELC 3826 (KLR)

Mkali & 253 others v Suleiman & 28 others; Kurgat (Through the Attorney General) (Interested Party) (Environment & Land Case 231 of 2017) [2024] KEELC 3826 (KLR)

Environment and Land Court
15 May 2024
MNMwangi Njoroge
2,150 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs moved the Environment and Land Court at Malindi by a notice of motion dated 22nd November 2023, supported by the affidavit of Nicholas Mkoma Mkali, seeking to join Leonard Kurgat, the DCIO Mtwapa, as an interested party through the Attorney General. They alleged that the DCIO, together with the 29th Defendant, had arrested and harassed them and supervised demolition of their structures on parcel No. 151/IV/MN CR 13079 in breach of a status quo order issued on 21st February 2019, and suggested that he therefore had an undisclosed interest in the land. The 1st Defendant opposed, arguing the application wasted the court's time and that a related suit, Kilifi CMCC E494 of 2023, was already pending against the intended interested party. The intended interested party, through the Attorney General, filed grounds of opposition and submissions, contending that the Plaintiffs bore the burden of demonstrating necessity; that he had no identifiable stake in the land, was not a custodian of land records, and acted only in performance of official duties maintaining law and order. The sole issue was whether he should be joined. The court set out the definition of an interested party under Rule 2 of the 2013 Rules and the Supreme Court's criteria in Communications Commission of Kenya v Royal Media Services and Meme v Republic, and adopted Justice Munyao Sila's reasoning in Skov Estate that a joinder requires more than a cursory interest. Holding that alleged arrests and supervision of demolitions did not demonstrate an identifiable stake, and that the intended joinder was for the entire suit rather than contempt proceedings, the court found his presence unnecessary. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the DCIO Mtwapa should be joined as an interested party on allegations that he disobeyed status quo orders and has a hidden interest in the suit land

Holding

The application fails; the Intended Interested Party has no identifiable stake in the suit, his alleged involvement was in the course of official duties, and his presence is not necessary for the court to determine ownership questions.

Reasoning

The court adopted the definition of an interested party from the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and the Supreme Court in Communications Commission of Kenya v Royal Media Services, plus the Munyao Sila threshold in Skov Estate. A mere allegation of a hidden interest arising from arrests or supervision of demolitions, and which in any event would found contempt proceedings rather than joinder to the whole suit, does not meet the threshold.

Legal principles established

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  • An interested party must demonstrate an identifiable stake or legal interest or duty in the proceedings, beyond merely being affected by the judgment, and that his presence is necessary to enable the court effectually and completely adjudicate on all questions in the suit.

Court orders

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  1. 1.The notice of motion dated 22nd November 2023 is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure Rules, 2010Order 1 rule 10; Order 40; Order 51 Rules 1 and 4
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2

Cases cited (9)

  • Francis Karioki Muruatetu & another v Republic & 5 others
    [2016] eKLR
  • Bernard Sitati v Director of Public Prosecution & another
    [2019] eKLR
  • Kingori v Chege & 3 others
    [2002] 2 KLR
  • Francis Muruatetu & another v Republic
    Petition 15 of 2016
  • Republic v Retirement Benefits Appeals Tribunal & 952 others; ex-parte Board of Trustees Teleposta Pension Scheme
    [2018] eKLR
  • Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others
    [2015] eKLR
  • 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
  • Skov Estate Limited & 5 others v Agricultural Development Corporation & another
    [2015] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 1 rule 10, Order 40 and Order 51 Rules 1 and 4 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, "Mkali & 253 others v Suleiman & 28 others; Kurgat (Through the Attorney General) (Interested Party) (Environment & Land Case 231 of 2017) [2024] KEELC 3826 (KLR)", Case Analysis (2024). Not stated in the judgment ( Notice of Motion dated 22nd November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3826/eng@2024-05-15

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