[2018] KEELC 1425 (KLR)
The court found that the National Land Commission's participation is necessary to enable the court to effectually and completely adjudicate upon the issues involved in the suit, particularly given its statutory role as custodian of records relating to the alienation of government land and the history of the suit...
Source-derived case information.
- Citation
- [2018] KEELC 1425 (KLR)
- Parties
- Plaintiff: Flash Audio Services Limited; Defendant: Mbesa Limited; Defendant: The Attorney General; Defendant: National Land Commission
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1538 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Joinder of Interested Party
- Outcome
- application allowed
- Judges
- AK Bor
- Legal Topics
- Joinder of Parties, Interested Party Status, Adjudication of Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Flash Audio Services Limited
Plaintiff
Mbesa Limited
Defendant
The Attorney General
Defendant
National Land Commission
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Joinder of Interested Party
Legal Issues
- 1 Whether the National Land Commission should be joined as a party to the suit.
- 2 Whether the involvement of NLC is necessary for the effective adjudication of the issues relating to the suit properties.
- 3 Whether the Commissioner of NLC has authority to swear affidavits on behalf of the Commission.
Ratio Decidendi
The court found that the National Land Commission's participation is necessary to enable the court to effectually and completely adjudicate upon the issues involved in the suit, particularly given its statutory role as custodian of records relating to the alienation of government land and the history of the suit properties. The court was satisfied that NLC's joinder would assist in clarifying the processes and transactions relevant to the dispute, and therefore allowed the application for NLC to be joined as a party to the proceedings.
Court Disposition
application allowed
Orders
- The National Land Commission is joined as the 3rd Defendant to the suit.
- NLC is directed to file and serve its pleadings and documents within 21 days.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
E.L.C. CASE NO. 1538 OF 2013
FLASH AUDIO SERVICES LIMITED.........................PLAINTIFF
VERSUS
MBESA LIMITED................................................1ST DEFENDANT
THE ATTORNEY GENERAL............................2ND DEFENDANT
RULING
The National Land Commission (NLC) in the application dated 19/2/2018 seeks to join these proceedings as an Interested Party and to file responses to the suit within 21 days. It also seeks to be granted an opportunity to call witnesses, cross examine witnesses and make submissions at the hearing of the suit. NLC states that it is the custodian of all records relating to the alienation of Government land. The Suit Properties being L.R. No. 1870/1/186 and L.R. No. 1870/1/544 emanated from processes undertaken by NLC’s predecessor in title, the Commissioner of Lands. NLC claims that it has a stake in these proceedings and it would be directly affected by the court’s decision and that it therefore ought to be allowed to participate in these proceedings.
In the supporting affidavit of Abdulkadir Adan Khalif, he enumerates various processes and transactions undertaken in relation to the suit parcels on which it needs to shed light. They include whether the suit land was transferred to the Defendant, whether the lease over the Suit Properties expired by effluxion of time without any extension and whether the allocation of the Suit Properties to the Plaintiff was proper.
The Plaintiff’s director, James Gichuki Wambugu swore the affidavit in opposition to the application. He averred that NLC is a mere interloper and a busy body in this dispute without any conceivable interest. He averred that the Suit Properties are purely private land. He challenged the capacity of the Deponent to swear the supporting affidavit. The director made other allegations to the effect that the 1st Defendant has attempted to waylay the Plaintiff’s directors while armed. The Plaintiff concludes in the affidavit that the application has been made at the behest of the 1st Defendant.
Parties made oral submissions. NLC relied on Order 1 Rule 10 (2) of the Civil Procedure Rules which allows the court to join an interested party to a suit. NLC argued that its involvement in the suit is necessary to enable the court to effectively and completely adjudicate all the issues before it in relation to the suit land. The Plaintiff relied on Section 20 (4) of the NLC Act on the power of the secretary and the secretariat and urged that a Commissioner of NLC has no power to swear an affidavit and no authority to act individually.
The court has considered the rival arguments and it is satisfied that NLC ought to be joined as a party in order to enable the court effectually and completely adjudicate upon the issues involved in this suit.
The court allows the application dated 19/2/2018. NLC will be added as the 3rd Defendant to the suit. NLC is directed to file and serve its pleadings and documents within 21 days.
The costs of the application shall be in the cause.
Dated and delivered at Nairobi this 5th day of October 2018.
K. BOR
JUDGE
In the presence of: -
Mr. Thuita for the Plaintiff
Mr. A. Kamau for the 2nd Defendant
Mr. V. Owuor- Court Assistant
No appearance for the Applicant and the 1st Defendant