[2017] KEELC 1859 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC NO. 35 OF 2016

CHEBUSWA LIMITED............................................................................PLAINTIFF

VERSUS

YEW INVESTMENTS T/A DORADO

COTTAGES MLD………………….............……………………...........1ST DEFENDANT

COUNTY GOVERNMENT OF KILIFI……..........……………….........2ND DEFENDANT

AND

MOHAMED ALI MUHIDIN……........................1ST PROPOSED INTERESTED PARTY

PATIENCE SAUMU KAINGU…..........….........2ND PROPOSED INTERESTED PARTY

JUMA KITSAO KWICHA…..…................……3RD PROPOSED INTERESTED PARTY

RULING

1. I have before me an application dated 7th February 2017. The three Applicants, Mohamed Ali Muhidin, Patience Saumu Kaingu and Juma Kitsao Kwicha are praying for Orders :-

i. THAT this court be pleased to join them as interested/third parties to these proceedings.

ii. THAT the three of them be granted leave to enter appearance within 15 days from the date of hearing this application.

iii. THAT pending the hearing and determination of the present application the Orders granted on 27th September 2016 and issued herein in favour of the Plaintiffs be stayed in relation to the occupation, use, management or operation of the sun beds, structures and developments built along the beach and shoreline next to, adjacent, adjoining and/or abutting Plot No. 1336 or any other side within the High Water Mark and Low Water Mark along the Indian Ocean.

iv. THAT there be a review of the injunctive orders granted on 27th September 2016 and the Order for enforcement issued herein in favour of the Plaintiffs

2. The said application is supported by an annexed affidavit of Patience Saumu Kaingu sworn on 7th February 2017 in which the Applicants state that they are the legal beneficiaries of a Temporary Occupation Licence from the 2nd Defendant authorizing them to use the beach fronting the Suitland. It is further their case that they have been denied access to the said beach by virtue of the Order granted on 27th September 2016 and following enforcement thereof by the police on 3rd February 2017, they stand to be affected if the injunctive orders are maintained.

3. The Plaintiffs are opposed to the Application. In Grounds of Opposition dated and filed herein on 17th February 2017, they oppose the application inter alia, on the following grounds:-

(i) That the proposed interested parties have no interest in being enjoined in this suit as the licence was given while the injunctive orders were already in force;

(ii) That the licence issued is irregular as it was issued on a prohibited area as (and is as) such null and void;

(iii) That the Interested parties are working in collusion with the defendants and their agents;

(iv) That the 2nd Defendant who issued(the) Licence(s) to the Interested Parties were aware of the said orders all along as they are parties to this suit;

(v) That the Interested Parties have come to court with unclean hands (and) are in contempt of (the) Court Order; and

(vi) That there are no sufficient grounds advanced to warrant stay as no sufficient reason has been given to show that they will be prejudiced.

4. I have considered the application and the Grounds of Opposition. From the record, I note that the Plaintiff filed the suit herein on 26th February 2016 seeking a number of reliefs against the two Defendants. Apart from accusing the 1st Defendant of constructing an illegal building and carrying on business in Plot No. 1355 illegally, the Plaintiff also states as follows at paragraphs 13 to 15 of the Plaint:

“13. The 1st Defendant herein has erected illegal and unauthorizedtemporary sheds and bandas along the beach and shoreline of the

sea abutting the Plaintiff’s land as well as completely erectedtemporary structures (sic) putting sun beds, sheds and bandas on the

Plaintiff’s easement of a right of way, access thereby making thePlaintiff unable to enjoy easement of a right of way created on PlotNo. 1356 Malindi and completely disabling the Plaintiff and its guestsfrom enjoying the riparian rights to the beach and shoreline adjacentand abutting its land.

14. The Plaintiff avers that the said unauthorized structures erected bythe 1st Defendant have completely compromised the security of thePlaintiff’s developments and occupation on Plot No. 1356 Malindiand have been turned to havens of crime thereby posing a great risk anddisadvantage to the Plaintiff’s residential house thereon.

15. The Plaintiff further avers that the 1st Defendant’s said unauthorizeddevelopments have brought about serious environmental degradation asthe shoreline and the beach adjoining and abutting the Plaintiff’sdevelopment has been turned into toilets by the defendants and a lot ofdegradable and non-degradable wastes have littered the said shorelineand beach abutting the Plaintiff’s residential home courtesy of the 1stDefendant’s activities.

5. For the foregoing reasons among others, the Plaintiff is seeking a declaration that the developments on the beach are illegal, wrongful and unlawful. The plaintiff is also seeking a mandatory injunction to compel the 1st Defendant to demolish and/or remove all the unauthorized developments and an order of a perpetual injunction to restrain the 1st Defendant, its agents and/or servants from occupying, using, running and or managing the said illegal structures.

6. On the same date of filing the suit, the Plaintiff equally filed an application seeking various temporary orders to issue against the Defendants. Having heard the application inter-partes, the Honourable Justice Oscar Angote delivered a Ruling on 22nd September 2016 in which it was ordered as follows:

“1. THAT an injunction be and is hereby issued restraining the 1st Defendant by itself, agents, servants and/or employees from occupying, using, managing or operating all those illegal sun beds, structures and development built along the beach and shoreline next to, adjacent, adjoining and/or abutting Plot No. 1356 or any other site within the High Water Mark and the Low Water Mark along the Indian Ocean pending the hearing and determination of this suit.

2. THAT the 1st Defendant to pay the costs of (the) Application.

7. It is apparent that the issuance of the orders did not immediately stop the activities complained of and on 30th January 2017, the Plaintiff filed an application specifically seeking an order as follows:-

1. “………

2. THAT this Honourable Court be pleased to direct that the Orders issued on 27th September 2016 be enforced by the Officer Commanding Malindi Police Station..”

8. On the same day, the Honourable Justice Angote granted the Order as sought and it would appear that on 3rd February 2017, the OCS Malindi enforced the said orders and thereby prompted the application before me.

9. I think before a Court can grant an application by a party to be joined the fundamental consideration is whether or not the participation of such a party would be necessary to enable the Court to effectually and effectively determine the issues in controversy.

10. In the Supporting Affidavit of Patience Saumu Kaingu, the Applicants indicate that they are beneficiaries of a Temporary Occupation Licence on portions of the beach fronting the Suitland. They do not however show what business and/or prejudice the granting and/or enforcement of the Court Orders of 22nd September 2016 has caused them. Other than stating that they have been denied access to the beach following the enforcement of the Court Orders by the OCS Malindi, the Applicants do not state what their business at the particular beach is and how the denial of access thereto stands to prejudice them.

11. A perusal of a copy of the License issued to them by the County Government of Kilifi, the 2nd Defendant herein on 22nd December 2016 reads in the relevant part as follows:-

“RE: TEMPORARY OCCUPATION LICENCE ON PORTIONS OF BEACH FRONTING LAND REFERENCE NUMBERS 1356, 10885 AND 1354

Your unreferenced application dated 17th December 2016 refers

The County Government hereby grants you permission to occupy/utilize the space for purpose(s) stated in the application for a period of one year(renewable) from the date of this license subject to the following conditions, that:

a. You will not erect any permanent structures on the beach

b. Your occupancy will not result in a public nuisance

c. The occupation is temporary and does not confer proprietary rights

d. ……….”

12. From the material placed before me, I was unable to discern the purposes for which the license was granted as the application dated 17th December 2016 by the Applicants to the 2nd Defendant was not annexed to this application. Be that as it may, I note that the licence prohibited the Applicants from erecting any permanent structures and further, that it was temporary and did not confer any proprietary rights upon the licensees.

13. For one to qualify to be enjoined in proceedings under Order 1 Rule 10(2) of the Civil Procedure Rules, he/she must not only be a necessary but also a proper party against or for whom a remedy must flow to or from the other side. It must be a party whose presence is necessary for the court to effectually and completely adjudicate the matter and without whose presence any resultant decree cannot be enforced.

14. In Jan Bolden Nielsen –vs- Hersman Philipus Steyn & 2 Others (2012) eKLR, Mabeya J observed as follows:

“In my view, “a necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree can be passed in a proceeding by the Court. If a necessary Party is not impleaded, the suit may be a non-starter as the reliefs sought if granted, may be ineffective.

15. In the Jan Bolden Nielsen Case(supra) Mabeya J proceeds to quote the old decision in Amon –vs- Raphael Tuck & Sons LN (1956) 1 All ER 273, where the English Court held, inter alia, that:

“The party to be joined must be someone whose presence is necessary as a party. What makes a person necessary party?....The only reason which makes a person a party to an action is so that he should be bound by the result of the action, and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party….

It is not enough that the intervener should be commercially or indirectly interested in the answer to the question; he must be directly and legally interested in the answer to the question; he must be directly and legally interested in the answer. A person is legally interested in the answer only if he can say that it may lead to a result that will affect him legally-that is by curtailing his legal rights. That will not be the case unless an order may be made in the action which will operate on something in which he is legally interested.”

16. The Applicants did not tell the Court that the structures the Orders of 22nd September 2016 required to be demolished were their own. Infact they cannot do that because the terms of their very licence prohibits them from putting up any structures. They cannot say that the issue as to who is entitled to use the beach front cannot be settled unless they are a party as the terms of their licence are temporary (one year renewable license) and fails to confer upon them proprietary rights as to the ownership of the beach. The 2nd Defendant who granted them the said licences is already a party in these proceedings and I am not convinced that their presence is necessary for an effectual and complete determination of the dispute before this Court.

17. Whatever the case, it is clear that they applied to use the beach front on 17th December 2016. As I had already pointed out, the suit herein was filed on 26th February 2016. The same day the suit was filed, the Honourable Justice Angote issued temporary orders restraining the 1st Defendant from inter alia, putting up structures and/or carrying on any activities on the suit premises. The Application giving rise to the Orders was served upon the 2nd Defendant who proceeded to file a Replying Affidavit thereto through its Director Legal Services one Michelle Fondo on 10th March 2016. Those orders continued in existence until the 22nd September 2016 when they were confirmed by the Court upon inter-partes hearing.

18. It follows therefore that the licence that the interested parties are referring to was issued by the 2nd Defendant while it was fully aware of the existence of this suit and the injunctive orders. I refuse to believe that a license issued under such circumstances can now bestow upon the Interested Parties the rights and/or interest which they now seek to enforce by joining these proceedings.

19. The upshot is that I do not find any merit in the application dated 7th February 2017. The same is dismissed with costs to the Plaintiff/Respondent

Dated, signed and delivered at Malindi this 19th day of September, 2017.

J.O. OLOLA

JUDGE