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ELCDismissedJudicial Review Application (amended application dated 1st November 2023)· [2024] KEELC 4661 (KLR)

Republic v National Land Commission & another; Njau (Interested Party) (Environment and Land Judicial Review Case 37 of 2018) [2024] KEELC 4661 (KLR)

Environment and Land Court
13 June 2024
1,196 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Nairobi court refused to remove a resident from a land case or force him to pay security, confirming interested parties' right to be heard in Kenya.

What this practically means

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Executive summary

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The applicant sought to strike out Benard K. Njau as an Interested Party in judicial review proceedings, or in the alternative, to compel him to deposit security for costs of Kshs. 10,000,000. The applicant, the registered proprietor of LR No. 209/7383/356 in Nairobi, contended that the Interested Party was a vexatious litigant involved in numerous suits touching the suit property and that he had been convicted for falsely holding himself out as chairperson of Kimathi Estate Welfare Association. The Interested Party objected, asserting he was a resident and home owner in Kimathi Estate directly affected by the proceedings, entitled to participate under Order 53 Rule 3(2) and Articles 22(2)(c) and 258(2)(c) of the Constitution. He further argued the application was moot and that the court was functus officio. The court framed the sole issue as whether the Interested Party should be struck out. Applying the Supreme Court's criteria in Francis K. Muruatetu v Republic, and noting that it had itself enjoined the Interested Party on 20th November 2018, the court held that his interest as a resident was identifiable and that findings in other cases could not override his right to be heard in proceedings in which he was the primary complainant. The applicant would suffer no prejudice, and security for costs was unwarranted absent self-evident vexatiousness. The application was dismissed with costs on 13th June 2024.

Key legal issues

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01

Whether the Interested Party should be struck out under Order 1 Rule 10(2)

Holding

The application failed; the Interested Party has an identifiable stake as a resident affected by the outcome and his participation causes the applicant no prejudice.

Reasoning

The court applied the Supreme Court's Muruatetu criteria for interested-party joinder. The Interested Party, a resident and home owner in Kimathi Estate, was directly affected by the judicial review proceedings concerning the estate land. The court had itself enjoined him on 20th November 2018. Adverse findings against him in other suits could not deprive him of the right to be heard in a case in which he was the primary complainant and had participated to judgment stage, and the applicant could counter any issues he raised.

p. 3
02

Whether security for costs of Kshs. 10,000,000 should be ordered

Holding

Security for costs was refused as there was no demonstrated basis that the Interested Party was vexatious or abusing court process.

Reasoning

The court held that access to justice considerations weigh against ordering security from an enjoined interested party. Security for costs is appropriate only where a litigant is self-evidently vexatious and intent on abusing the process of the court. Since the Interested Party had an identifiable stake and had not filed the case but was joined as a person affected by the outcome, ordering security would be unjust.

p. 3

Legal principles established

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  • The elements for joinder of an interested party are personal interest/stake, prejudice on non-joinder, and a demonstrated relevance of the intended submissions
  • Findings in other court cases cannot be used to override a party's right to be heard in a case in which it has participated

Court orders

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  1. 1.The applicant's application to strike out the Interested Party and for security for costs is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
  • Civil Procedure Rules, 2010Order 53 Rule 3(2)
  • Constitution of Kenya, 2010Article 22(2)(c)
  • Constitution of Kenya, 2010Article 258(2)(c)

Cases cited (1)

  • Francis K. Muruatetu and another v. Republic & 5 others
    [2016] eKLR
Jurisdiction invoked
Order 1 Rule 10(2) and Order 53 Rule 3(2) 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, "Republic v National Land Commission & another; Njau (Interested Party) (Environment and Land Judicial Review Case 37 of 2018) [2024] KEELC 4661 (KLR)", Case Analysis (2024). Judicial Review Application (amended application dated 1st November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4661/eng@2024-06-13

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