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ELCPartially AllowedE051 of 2023· [2024] KEELC 7144 (KLR)

Ethics and Anti Corruption Commission v Kensko Agro Produce Limited & 4 others (Environment & Land Case E051 of 2023) [2024] KEELC 7144 (KLR)

Environment and Land Court
30 October 2024
NMN. A. Matheka
2,057 words in judgment
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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 is a ruling of the Environment and Land Court at Mombasa (N.A. Matheka, J) dated 30th October 2024 on an application dated 6th June 2024 by HF Bancassurance Intermediary Ltd. The Applicant sought to be joined as a defendant in ELC E051 of 2023, a suit by the EACC seeking declarations that survey plans creating the grant for Title No. Mombasa Municipality/Block XXI/577 and its subdivision into Title Nos. Mombasa/Block 580-584 are null and void. The Applicant, which holds Certificates of Lease dated 10th July 2023 over Title Nos. Mombasa/Block 580, 581 and 582, argued it is a necessary party with a proprietary interest at stake and sought a stay of proceedings pending the hearing of Mombasa Court of Appeal Civil Application No. E060 of 2023, in which the EACC seeks to reopen Civil Appeal No. 82 of 2018 and set aside the judgment of 7th March 2019. The court, guided by Order 1 Rule 10(2) of the Civil Procedure Rules and the Supreme Court's pronouncements in Communications Commission of Kenya v Royal Media Services (drawing on Mumo Matemo and Meme v Republic), held that the Applicant has a proprietory interest over the suit properties and should be enjoined as a defendant, with no prejudice to the existing parties. On stay, the court found that the pending Court of Appeal application touches on the same subject matter and would have a bearing on this suit, and that awaiting its outcome would avoid conflicting decisions. The application was allowed in full: the Applicant was joined as a defendant, service of pleadings directed, leave to file pleadings granted, proceedings stayed pending the Court of Appeal application, and costs were awarded in the cause. The underlying suit was not determined on its merits.

Key legal issues

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01

Joinder of HF Bancassurance Intermediary Ltd as defendant or interested party

Holding

The Applicant has a proprietory interest in the suit properties and ought to be enjoined as a defendant; no prejudice will be suffered by the existing parties

Reasoning

Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the criteria in Communications Commission of Kenya v Royal Media Services and Meme v Republic, the court found the Applicant is the registered proprietor of Title Nos. Mombasa/Block 580, 581 and 582, holding Certificates of Lease dated 10th July 2023. Since the EACC seeks to have the subdivisions creating those titles declared null and void, the Applicant's presence is necessary for complete and effectual adjudication.

p. 4
02

Stay of proceedings pending the Court of Appeal application

Holding

Proceedings stayed pending determination of Court of Appeal Civil Application No. E060 of 2023 because its outcome will have a bearing on this matter and will avoid conflicting decisions

Reasoning

The court noted the related litigation history: ELC No. 282 of 2013 decided in favour of HFCK, the dismissal of Civil Appeal No. 82 of 2018 on 7th March 2019, and the pending application to reopen that appeal and admit additional evidence. Given that the Court of Appeal application concerns the same subject matter, staying these proceedings prevents contradictory verdicts and multiplicity of proceedings.

p. 4

Legal principles established

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  • An interested party is one who has a stake in the proceedings and will be affected by the decision of the court
  • Parties who should be made parties to a suit are persons necessary for a complete and effectual adjudication of the dispute

Court orders

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  1. 1.HF Bancassurance Intermediary Ltd to be enjoined as a Defendant in the proceedings
  2. 2.Parties herein are to serve HF Bancassurance Intermediary Ltd with all their respective pleadings filed herein
  3. 3.HF Bancassurance Intermediary Ltd is granted leave to file its pleadings, responses and supporting documents
  4. 4.There be a stay of the proceedings herein pending the hearing and determination of Mombasa Court of Appeal Civil Application No. E060 of 2023 - EACC vs KBC, HFCK Ltd, AG and Kensko
  5. 5.Costs of this application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 34 and 6
  • Civil Procedure Rules 2010Order 1 Rules 3 and 10
  • Civil Procedure Rules 2010Order 51 Rule 1

Cases cited (5)

  • Joseph Njau Kingori vs Robert Maina Chege & 3 Others
    (2002) eKLR
  • Kenya National Commission on Human Rights vs Attorney General: Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    (2020) eKLR
  • Communications Commission of Kenya And 4 Others vs Royal Media Services Limited & 7 Others
    Petition No. 15 of (2014) eKLR
  • Meme v. Republic
    [2004] 1 EA 124
  • Mumo Matemo case
Jurisdiction invoked
Sections 1A, 1B, 34 and 6 of the Civil Procedure Act Cap 21; Order 1 Rules 3 and 10 and Order 51 Rule 1 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, "Ethics and Anti Corruption Commission v Kensko Agro Produce Limited & 4 others (Environment & Land Case E051 of 2023) [2024] KEELC 7144 (KLR)", Case Analysis (2024). E051 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7144/eng@2024-10-30

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