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ELCAllowedNot stated in the judgment as provided· [2024] KEELC 4316 (KLR)

Honey Creepers Investments Limited v Attorney General & 3 others; Ethics and Anti-Corruption Commission (Intended Interested Party) (Environment & Land Petition E049 of 2021) [2024] KEELC 4316 (KLR)

Environment and Land Court
23 May 2024
OAO. A. Angote
2,291 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's anti-corruption commission can join a Kshs 3 billion land compensation case because its fraud investigation questions whether the owner's title was lawful.

What this practically means

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Executive summary

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By a Notice of Motion dated 3rd October 2023, the Ethics and Anti-Corruption Commission (EACC) sought joinder to a petition in which the Petitioner claims lawful acquisition of LR No. 209/14392 IR No. 86123 and seeks declaratory reliefs, mandamus to withdraw a caveat, and compensation of Kshs. 3 billion for compulsory acquisition for the Nairobi Expressway Road Project under Article 40(3) of the Constitution and section 111 of the Land Act. EACC, through an affidavit of investigator Margaret Wambeti Ngari, deponed that it is investigating the irregular allocation of the suit property, which was allegedly carved out of the Waiyaki Way Road Reserve, that the original allottee Cab Investments Company Limited is not registered in the Companies Registry, and that the letter of allotment was based on an unapproved part development plan. The Petitioner opposed, arguing EACC had produced no new evidence, that the mandate to review grants of public land vests in the National Land Commission, and that EACC should not advance the 1st Respondent's case. The court framed a single issue: whether EACC should be joined. Applying Order 1 rule 10(2) of the Civil Procedure Rules, the Mutunga Rules definition, and the Supreme Court's criteria in Muruatetu and Communications Commission of Kenya, the court held EACC has an identifiable, proximate stake because its investigations go to the root of whether the Petitioner lawfully acquired title. It applied Republic vs National Land Commission; Kibua, holding section 11 of the EACC Act permits joinder to existing suits, and distinguished Fidel Holdings. The application was allowed with EACC joined, granted 21 days to file pleadings, corresponding leave to the parties, and costs in the cause.

Key legal issues

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01

Whether EACC met the criteria for joinder as an Interested Party

Holding

EACC is a necessary party; its investigations into the alleged irregular allocation of the suit property as a road reserve go to the root of whether the Petitioner lawfully acquired title, and its presence will enable the court to effectually and completely determine the matters in question.

Reasoning

Applying the Muruatetu criteria and the definition of an interested party in the Mutunga Rules and case law, the court found EACC had an identifiable and proximate interest: it is investigating whether the suit property, a Waiyaki Way road reserve, was irregularly allocated to Cab Investments Limited, which conveyed it to the Petitioner. Its evidence is relevant and will assist complete adjudication. The court distinguished Fidel Holdings, where joinder was sought by the 1st Respondent and the suit concerned only recovery of compensation monies.

p. 6
02

Whether EACC's statutory mandate under section 11(1)(j) of the EACC Act extends to joinder in existing suits

Holding

Section 11 of the EACC Act is not restricted to filing fresh suits and does not exclude joinder to existing suits.

Reasoning

Relying on Republic vs National Land Commission & 3 Others; Kibua (Exparte), the court adopted the reasoning that the power to institute and conduct proceedings for the protection of public property includes suing, being sued and joining existing proceedings. EACC's investigative findings that the original allottee is non-existent and the allotment was based on an unapproved PDP demonstrated a recognizable stake.

p. 6

Legal principles established

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  • Enjoinment as an interested party is not a right but discretionary; the applicant must demonstrate an identifiable, proximate interest, prejudice from non-joinder, and relevant submissions not merely replicating other parties' cases
  • The power to institute and conduct proceedings under section 11 of the Ethics and Anti-Corruption Commission Act includes joining existing proceedings
  • A party may be joined where its presence will result in the complete settlement of all questions involved in the proceedings

Court orders

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  1. 1.The Ethics and Anti-Corruption Commission (EACC) is hereby joined to these proceedings as an Interested Party
  2. 2.The EACC is granted leave to file pleadings, witness statements and the necessary documents thereof within 21 days of this determination
  3. 3.The Petitioners and Respondents are granted corresponding leave to file responses if need be within 14 days of service
  4. 4.Costs of this application shall be in the cause
Jurisdiction invoked
Order 1 rule 10(2) of the Civil Procedure Rules and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Honey Creepers Investments Limited v Attorney General & 3 others; Ethics and Anti-Corruption Commission (Intended Interested Party) (Environment & Land Petition E049 of 2021) [2024] KEELC 4316 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4316/eng@2024-05-23

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