[2020] KEELC 2936 (KLR)
The court determined that it could not, at this interlocutory stage, conclusively decide which party has the right to represent the interests of the residents of the suit land. However, it found that the interests of justice require that any party claiming an interest in the subject matter be allowed to participate...
Source-derived case information.
- Citation
- [2020] KEELC 2936 (KLR)
- Parties
- Applicant: The Muthara Njuri Ncheke Council of Elders; Applicant: The Amuthumba/Ngaremara Pastoralist Community Based Organization; Respondent: The Committee of Ngaremara/Gambella Adjudication Section through the Chairman Cyprian Kaume Mukira; Respondent: The District Land Adjudication & Settlement Officer Tigania East Sub-County; Respondent: The Hon. Attorney General; Applicant: Ngolua Mwaine (on behalf of the Mula community)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Joinder as Interested Party
- Outcome
- application for joinder as interested party allowed
- Legal Topics
- Joinder of Parties, Community Land Rights, Adjudication Process, Conservatory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
The Muthara Njuri Ncheke Council of Elders
Applicant
The Amuthumba/Ngaremara Pastoralist Community Based Organization
Applicant
The Committee of Ngaremara/Gambella Adjudication Section through the Chairman Cyprian Kaume Mukira
Respondent
The District Land Adjudication & Settlement Officer Tigania East Sub-County
Respondent
The Hon. Attorney General
Respondent
Ngolua Mwaine (on behalf of the Mula community)
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Joinder as Interested Party
Legal Issues
- 1 Whether the Mula community, through Ngolua Mwaine, should be enjoined as an interested party in the petition.
- 2 Whether failure to enjoin the intended interested party would prejudice their rights to the suit land.
Ratio Decidendi
The court determined that it could not, at this interlocutory stage, conclusively decide which party has the right to represent the interests of the residents of the suit land. However, it found that the interests of justice require that any party claiming an interest in the subject matter be allowed to participate in the proceedings. The court reasoned that only by being enjoined can the applicant fully present their claims and protect their alleged rights. The application for joinder was therefore allowed to ensure all potentially affected parties are heard, with no orders as to costs.
Court Disposition
application for joinder as interested party allowed
Orders
- The application dated 1.7.2019 for the Mula community, through Ngolua Mwaine, to be enjoined as an interested party is allowed.
- No orders as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
PETITION NO. 5 OF 2019
THE MUTHARA NJURI NCHEKE COUNCIL OF ELDERS .........1ST PETITIONER
THE AMUTHUMBA/NGAREMARA PASTORALIST COMMUNITY BASED
ORGANIZATION ................................................................................2ND PETITIONER
VERSUS
THE COMMITTEE OF NGAREMARA/GAMBELLA ADJUDICATION SECTION
THROUGH
THE CHAIRMAN CYPRIAN KAUME MUKIRA.......................1ST RESPONDENT
THE DISTRICT LAND ADJUDICAITON & SETTLEMENT OFFICER TIGANIA
EASTSUB-COUNTY .....................................................................2ND RESPONDENT
THE HON. ATTORNEY GENERAL ............................................3RD RESPONDENT
RULING
1. Vide the application dated 1. 7.2019, the Mula community through their chairman one Ngolua Mwaine is seeking to be enjoined in these proceedings as an interested party.
2. The grounds in support of this application are:
i. That on 8. 4.2019, the petitioners filed this petition secretly without involvement of the intended interested party.
ii. That the intended interested party being the indigenous people of Muthara, Amuthumba/Ngaremara Ranching areas are entitled to the protection of constitution and that by extending this adjudication process to include the Ranching area which they occupy without first establishing it as an adjudication section and public participation and intended interested party is tantamount to alienating their land and defraudingthem as a community which could offend their fundamental rights under the bill of rights.
iii. The intended interested party/applicant may lose all their lands unless they are enjoined in this case.
iv. That the honourable court has issued orders of conservatory and the matterisset for pre-trial conference and if allowed to proceed without enjoining the intended interested parties in the suit,the applicantsstand to suffer irreparable loss and damages.
3. Ngo’lua Mwaine has also sworn two affidavits in support of his application averring that the intended adjudication will result in alienation of their lands which is situated in Lithira location. He avers that Ngaremara Community and Mula Community forms Amuthumba division.
4. This application was not opposed by the respondents. However, the application has been opposed by the petitioners through the affidavit of one Justus Mugaa who identifies himself as chairman of the 2nd petitioners. He contends that Mula community does not exist and that it is but a creation of Ng’olua Mwaine who is pursuing his own personal interests. It is also contended that Ng’olua was a member of the committee formed by the DLASO which committee has been sued. Mugaa Justus is praying that the application be dismissed.
5. I find that on 4. 11. 2019, the court gave directions that application be canvassed by way of written submissions. No such submissions were filed.
6. I find that the 2nd petitioners have identified themselves as a community based organization registered in year 2011 while the interested party identifies themselves as the indigenous people on the suit land. This court is not in a position to make a finding at this stage of the suit as to who has a right to pursue the interests of the residents in the area where the suit land is situated.
7. It is only when a party is on board this suit can they be able to fully bring out their claims. In the circumstances, I allow the application with no orders as to costs.
DATED, SIGNED AND DELIVERED AT MERU THIS 30TH DAY OF APRIL, 2020
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this ruling was given to the parties at the conclusion of the hearing and by a fresh notice by the Deputy Registrar. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE