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ELCPartially AllowedELC Case pending before the Chief Magistrate's Court at Kilifi, transferred/docketed at the Environment and Land Court, Mombasa (application dated 22nd June 2023)· [2024] KEELC 5646 (KLR)

Mwangome & 5 others v Rea Vipingo Plantations Ltd & 3 others; Commission for Human Rights & Justice (Interested Party) (Environment & Land Case E030 of 2023) [2024] KEELC 5646 (KLR)

Environment and Land Court
15 July 2024
10,484 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a human rights commission to join a Kilifi land case and paused related Malindi petitions to avoid conflicting decisions.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J, delivered 15 July 2024) determines a Notice of Motion dated 22 June 2023 by the Commission for Human Rights and Justice, an intended interested party, in a land dispute over parcel L.R. No. 663/IV/MN. The Commission sought joinder, leave to file a defence and counter-claim, and a stay of proceedings pending determination of its two petitions before the Malindi High Court (ELC Petitions E004 and E008 of 2023) concerning alleged fraudulent alienation of land granted to Bambani Kilio CBO. The 1st and 2nd Defendants opposed, arguing the Commission was an unauthenticated 'busybody' whose interest duplicated that of the 6th Plaintiff, and that a stay would derail expeditious disposal; the 4th Defendant supported the application. The court framed three issues: joinder, stay, and costs. Applying Order 1 Rule 10(2) and authorities including Kingori v Chege, Departed Asians Property Custodian Board and Civicon, it found the Commission's presence necessary for effectual adjudication and allowed joinder as 5th Defendant, with leave to file pleadings. Although acknowledging that stay of proceedings is a grave measure sparingly granted (Kenya Wildlife Service v Mutembei; Global Tours & Travels), the court, weighing the balance of convenience and the need to preserve the suit land, stayed the Malindi petitions pending determination of this suit. Costs were not awarded to any party. The hearing was rescheduled to 26 November 2024 with a pre-trial mention on 8 October 2024.

Key legal issues

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01

Whether the Commission for Human Rights and Justice should be joined as an interested party

Holding

Joinder allowed; the Applicant's presence was necessary to effectually and completely adjudicate the suit and the Court's orders were likely to affect its interests.

Reasoning

The court applied Order 1 Rule 10(2) and the Kingori v Chege tests, and the Departed Asians and Civicon principles. The Applicant sought to expose alleged fraudulent land dealings affecting land granted to Bambani Kilio CBO; its presence was necessary and would avoid multiplicity of suits, being bound by the Court's decision.

p. 17
02

Whether proceedings should be stayed pending determination of Malindi Petitions E004 and E008 of 2023

Holding

Stay granted awaiting the outcome of this case, given the need to preserve the suit land and avoid inconsistent findings.

Reasoning

Although stay is a grave measure exercisable sparingly per Gikonyo J in Kenya Wildlife Service v Mutembei and Ringera J in Global Tours & Travels, the court weighed the conflicting interests and balance of convenience, found preservation of the suit land necessary, and stayed the Malindi Petitions pending determination of this suit.

p. 18
03

Costs of the application

Holding

No orders as to costs despite the general rule that costs follow the event.

Reasoning

The court reaffirmed Section 27(1) of the Civil Procedure Act and the principle in Harun Mutwiri and Hussein Muhumed Sirat that costs follow the event, but in the present case the Honourable Court elected not to award any costs.

p. 18

Legal principles established

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  • A stay of proceedings is a grave judicial action to be granted sparingly and only in exceptional cases as it interferes with the right of a litigant to conduct litigation.
  • A party may be joined where its presence is necessary to enable the court effectually and completely adjudicate upon all questions in the suit, and where the orders sought would legally affect its interests.

Court orders

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  1. 1.Notice of Motion application dated 22nd June 2023 found meritorious and allowed with no orders as to costs
  2. 2.Commission for Human Rights and Justice joined as the 5th Defendant
  3. 3.Plaintiff granted 7 days leave to file and serve an Amended Plaint having the Intended Interested Party as the 5th Defendant
  4. 4.5th Defendant granted 14 days leave to file and serve Defence and Counter-Claim if any, and all other relevant documents, pursuant to Order 6, 7 and 11 of the Civil Procedure Rules, 2010
  5. 5.Plaintiff granted 7 days to file and serve Reply to Defence and Defence to Counter-Claim if any, with all parties at liberty to file and exchange other relevant documents
  6. 6.Hearing date of 18th July 2024 vacated and matter set for hearing on 26th November 2024, with mention on 8th October 2024 for final Pre-Trial Conference under Order 11
  7. 7.Stay of proceedings issued in respect of High Court ELC Petition Number E004 and E008 in the Malindi High Court ELC Division pending final determination of this case

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 3
  • Civil Procedure Rules, 2010Order 1 Rule 1
  • Civil Procedure Rules, 2010Order 1 Rule 10 (2)
  • Civil Procedure Rules, 2010Order 1 Rule 15
  • Civil Procedure Rules, 2010Order 6, 7 and 11
  • Civil Procedure ActSections 3A, 6 and 7
  • Civil Procedure ActSection 27(1)

Cases cited (20)

  • Trusted Society of Human Rights Alliances v Mumo Matemo and 5 others
    Application no. 12 of 2013 [2014] EKLR
  • Kenya Wildlife Service v James Mutembei
    [2019] eKLR
  • Francis Karioki Muruatetu & another v Republic & 5 others
    Petition No.15 as consolidated with No 16 of 2013 [2016] eKLR
  • Hopf v Director of Survey & 2 others; Sakaja & 2 others (Interested Parties)
    [2022] KEELC 6 (KLR)
  • Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others
    [2016] eKLR
  • Funzi Development Limited & Others v County Council of Kwale
    Mombasa Civil Appeal No.252 of 2005 [2014] eKLR
  • Florence Nafula Ayodi & 5 others v Jonathan Ayodi Ligure, John Tabalya Mukite & another; Benson Girenge Kidiavai & 67 others
    [2021] eKLR
  • Elizabeth Nabangala Wekesa v Erick Omwamba & 3 Others; Esther Momanyi Omwamba (applicant)
    [2021] eKLR
  • Leonard Kimeu Mwanthi v Rukaria M’twerandu M’iringu; Nathaniel Kithinji Ikiugu & 4 others (Intended Interested Parties)
    [2021] eKLR
  • David Kiptugen v Commissioner of Lands, Nairobi & 4 others
    [2016] eKLR
  • Communications Commission of Kenya & 4 Others v Royal Media Services Limited
  • Kingori v Chege & 3 Others
    [2002] 2 KLR 243
  • Departed Asians Property Custodian Board v Jafier Brothers Ltd
    [1999] 1 EA 55
  • Civicon Limited v Kivuwatt Limited and 2 Others
    [2015] eKLR
  • Martin Kirima Baithambu v Jeremiah Miriti
    [2017] eKLR
  • Global Tours & Travels Limited
    Nairobi HC Winding up Cause No. 43 of 2000
  • David Morton Silverstein v Atsango Chesoni
    [2002] eKLR
  • Harun Mutwiri v Nairobi City County Government
    [2018] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Limited & Another
    [2015] eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
Jurisdiction invoked
Order 1 Rule 3 and Order 1 Rule 10(2) of the Civil Procedure Rules, 2010; Sections 3A, 6 and 7 of the Civil Procedure Act, Cap. 21

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, "Mwangome & 5 others v Rea Vipingo Plantations Ltd & 3 others; Commission for Human Rights & Justice (Interested Party) (Environment & Land Case E030 of 2023) [2024] KEELC 5646 (KLR)", Case Analysis (2024). ELC Case pending before the Chief Magistrate's Court at Kilifi, transferred/docketed at the Environment and Land Court, Mombasa (application dated 22nd June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5646/eng@2024-07-15

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