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ELCAllowedNotice of Motion dated 8th February 2024 in a petition at Kisumu· [2024] KEELC 5112 (KLR)

Vivo Energy Kenya Limited v Kisumu County Government & 3 others; Ethics & Anti-Corruption Commission (Interested Party) (Petition 7 of 2019) [2024] KEELC 5112 (KLR)

Environment and Land Court
4 July 2024
3,839 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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This ruling by the Environment and Land Court at Kisumu (S. Okong'o, J) determined a Notice of Motion dated 8th February 2024 by the 3rd Respondent in an ongoing land-related constitutional petition over Kisumu Municipality/Block 7/7. The application sought two things: leave to amend the 3rd Respondent's answer to the further amended petition to introduce a cross-petition, and leave to join the National Land Commission (NLC) as a respondent to that cross-petition. The application followed a prior ruling of 30th January 2024 in which the court found the cross-petition filed without leave to be irregular but allowed the 3rd Respondent to regularise it. The application was opposed by the Petitioner, which argued it was the registered proprietor, that the petition was part-heard with three expert witnesses already called, that joinder would cause delay and prejudice incapable of being atoned in costs, and that the NLC had no role in issuing titles per the Supreme Court's advisory opinion in In the Matter of the National Land Commission. The court allowed both limbs. It held that Rule 18 empowers amendment at any stage, that the proposed cross-petition raised no new case, and that the Petitioner would suffer no prejudice given its own repeated amendments and the early stage of the hearing. On joinder, the court noted the NLC now performs the former Commissioner of Lands' functions of alienating public land and extending leases, and that the 3rd Respondent accused it of illegal allocation, making it a necessary party entitled to be heard. Eight orders were issued regulating the filing and service of the amended pleadings and the NLC's appearance, with costs of the application in the cause.

Key legal issues

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01

Whether leave should be granted to amend the answer to introduce a cross-petition

Holding

Leave granted; the cross-petition introduces no new case and the Petitioner would suffer no prejudice, having itself amended the petition twice, once mid-hearing

Reasoning

The court perused the draft cross-petition and found it consistent with the 3rd Respondent's pleaded case. The amendment was prompted by the Petitioner's own Further Amended Petition, so delay could not be laid at the 3rd Respondent's door. The petition was at an early stage, with only three expert witnesses called, and the Petitioner could recall witnesses. Any prejudice could be addressed through the right of reply and costs.

p. 5
02

Whether the NLC is a necessary party to the cross-petition

Holding

Joinder granted; the NLC now performs the functions of the defunct Commissioner of Lands and is accused of the illegal allocation/extension, so its presence is necessary

Reasoning

Under Section 5 of the National Land Commission Act, 2012 the NLC manages and alienates public land, functions previously performed by the Commissioner of Lands whose office is defunct. The Petitioner's title derives from an extension of Government Lease. Since the 3rd Respondent accuses the NLC of illegal and fraudulent allocation, the NLC is entitled to be heard and is better placed to clarify the status of the suit property.

p. 8

Legal principles established

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  • A court may allow amendment of pleadings at any stage of constitutional petition proceedings under Rule 18 of the Mutunga Rules
  • A party accused of illegally allocating or extending a lease over land is entitled to be heard before the court determines the allegation against it

Court orders

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  1. 1.The 3rd Respondent is granted leave to further amend its amended answer to further amended petition and to introduce a cross-petition in terms of the draft annexed to the application
  2. 2.The 3rd Respondent is granted leave to join the National Land Commission as a party to the cross-petition
  3. 3.The further amended answer and cross-petition to be filed within 14 days
  4. 4.The Petitioner may file a reply to the further amended answer and an answer to the cross-petition within 14 days of service
  5. 5.The 1st Respondent to the main petition to file its reply to cross-petition within 14 days of service
  6. 6.The 3rd Respondent to take out summons for NLC and serve it with the further amended answer, cross-petition, the Petitioner's further amended petition and a copy of the ruling
  7. 7.NLC to enter appearance within 7 days of service and file its response to the cross-petition within 14 days thereafter if it wishes to defend
  8. 8.Costs of the application shall be in the cause
Jurisdiction invoked
Articles 47 and 50 of the Constitution and Rules 3(8), 5, 18 and 19 of 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, "Vivo Energy Kenya Limited v Kisumu County Government & 3 others; Ethics & Anti-Corruption Commission (Interested Party) (Petition 7 of 2019) [2024] KEELC 5112 (KLR)", Case Analysis (2024). Notice of Motion dated 8th February 2024 in a petition at Kisumu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5112/eng@2024-07-04

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