[2019] KEELC 4362 (KLR)
The court declined to grant the orders sought in the Notice of Motion because the reliefs sought therein were identical to those in the main suit, and determining the application would effectively dispose of the entire suit at an interlocutory stage, which is undesirable. Furthermore, the court found no evidence of...
Source-derived case information.
- Citation
- [2019] KEELC 4362 (KLR)
- Parties
- Plaintiff: Francis Nyaga & 69 Others; Defendant: National Irrigation Board
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 153 of 2017
- Procedural Posture
- Notice of Motion / Interlocutory Application Ruling
- Outcome
- application dismissed
- Legal Topics
- Authority to Sue, Representative Actions, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Nyaga & 69 Others
Plaintiff
National Irrigation Board
Defendant
Procedural Posture
Notice of Motion / Interlocutory Application Ruling
Legal Issues
- 1 Whether the Notice of Motion should be determined at this stage when it seeks the same relief as the main suit.
- 2 Whether the plaintiffs have proper authority to act on behalf of others in the suit.
Ratio Decidendi
The court declined to grant the orders sought in the Notice of Motion because the reliefs sought therein were identical to those in the main suit, and determining the application would effectively dispose of the entire suit at an interlocutory stage, which is undesirable. Furthermore, the court found no evidence of authority for the plaintiffs to act on behalf of the other persons named in the suit. The appropriate course is to have the matter heard on its merits, with all procedural requirements regarding representation properly addressed.
Court Disposition
application dismissed
Orders
- The Notice of Motion is declined.
- Costs of the application shall be in the suit.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
ELC CASE NO. 153 OF 2017
FRANCIS NYAGA & 69 OTHERS………………………......PLAINTIFFS
VERSUS
NATIONAL IRRIGATION BOARD………………..………..DEFENDANT
RULING
[1] I have perused the Notice of Motion filed in Court on 15th November 2012 plus the supporting affidavit of one Francis Nyaga sworn on 15th November 2017. I have also looked at the plaint filed on the same date.
[2] I have equally perused the replying affidavit sworn on 23rd April 2018 and filed in Court on 24th April 2018 and the annextures filed therein. I note the plaint and the Notice of Motion ask for exactly the same thing. Determining the Notice of Motion will be tantamount to determining the suit. That will not be desirable. I also note that the suit is filed on behalf of other people. I find no authority to act for those people in the Court file.
[3] It is not prudent or desirable to grant the orders sought at this stage. The suit should be fixed for hearing on merits.
Costs of this application shall be in the suit.
READ and SIGNED in open Court at Kerugoya this 4th day of March 2019.
E.C. CHERONO
ELC JUDGE
4TH MARCH, 2019
In the presence of:
1. Ms Wanjiru Njuguna - present
2. Plaintiff/Advocate – absent
3. Mr. Mbogo Court clerk – present