[2024] KEELC 13788 (KLR)

Opiyo & 2 others v Director of Land Administration & 2 others; Cabinet Secretary, Ministry af Lands, Public Works, Housing & Urban Development & 5 others (Interested Parties) (Petition E002 of 2024) [2024] KEELC 13788 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13788 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Petition E002 of 2024

SO Okong'o, J

December 11, 2024

Between

Moses Owino Opiyo & 2 others & 2 others

Petitioner

and

Director Of Land Administration & 2 others & 2 others

Respondent

and

Cabinet Secretary, Ministry Of Lands, Public Works, Housing & Urban Development & 5 others & 5 others

Interested Party

Ruling

1. The Petitioners are registered and licensed practising physical planners. The Petitioners brought this petition on 4th June 2024. The Petitioners' main grievance in the petition is that even though their role as physical planners is spelt out in the Constitution of Kenya, their services are not being employed by the Respondents, especially in freehold parcels of land. The Petitioners have contended that the said action by the Respondents has caused or deterred the County Governments from implementing various approved physical and land use development plans within their areas of jurisdiction. The Petitioners have framed three issues which they want the court to determine in the petition namely; whether the involvement of registered qualified and licensed physical planners in the development of housing and land use plans and schemes is mandatory; whether the physical planning, urban development and housing and land use plans and schemes that have not been approved by a registered qualified and licensed physical planner is null and void, and whether any public officer who approves physical planning, urban development and housing and land use plans and schemes that has not been approved by a registered qualified and licensed physical planner is guilty of an offence punishable by law. The Petitioners have sought several reliefs among them; a declaration that the subdivision, physical planning and land use of freehold land within the Country where the preparation and execution of necessary documents have taken place without the involvement of the registered physical planners be declared invalid.

2. What is now before me is an application brought by the Institution of Surveyors of Kenya (hereinafter referred to as “the Applicant”) seeking an order that it be joined in this petition as an Interested Party and be allowed to file such pleadings and/or other documents in the petition. The application is brought on the ground that the issues raised for determination in the petition have a direct bearing on the Applicant. The Applicant has averred that the issues raised concerning subdivision, physical planning and land use of freehold land within the Country affects not only the physical planners but also the Surveyors in Kenya. The Applicant has averred that it should be given a chance to be heard in the matter as the orders sought are prejudicial to it. The Applicant has averred that its joinder to the suit would enable it to assist the court to adequately and effectively adjudicate upon all the matters raised in the petition that affects the survey profession. The Applicant has averred that failure to join it in the petition would prejudice it as it has a substantial interest in the matter which is the subject of the petition.

3. The application is supported by the affidavit of Erick Nyadimo in which he has stated that the Applicant is the sole professional body of Surveyors of Kenya and also a non-profit professional organization that brings together all professionals in the land sector. He has stated that the petition not only affects the physical planners in Kenya but also the whole profession of land surveyors, their trade and livelihood. He has stated that it is in the public interest for the Applicant to be joined in the petition to enable it to protect the rights of Surveyors as professionals. He has stated that the Applicant is likely to be affected and/or prejudiced by the orders sought in the petition.

4. The application is opposed by the Plaintiffs through a replying affidavit sworn by the 1st Petitioner on 13th September 2024. The 1st Interested Party has stated that the role of the members of Applicant begins after scheme plans preparation and approval. The 1st Petitioner has averred that the role of scheme plan preparation which is the subject of the petition belongs to licensed physical planners. He has stated that surveyors lack legal backing and training for planning and laying out design of subdivision/amalgamation scheme plans and as such their input is not required in the petition. He has averred that the main aim of the petition is to ensure the engagement of registered physical planners in the preparation of subdivision/amalgamation scheme plans and to involve relevant planning authorities in development control for sustainable utilization of freehold land titles. He has stated that the Applicant has not demonstrated its interest in the subject matter of the petition to warrant its joinder as an interested party to the petition.

5. I have considered the Applicant’s application together with the supporting affidavit. I have also considered the replying affidavit by the Plaintiffs. Finally, I have considered the submission filed by the Applicant and the Plaintiffs on 24th October 2024 and 16th October 2024 respectively and the authorities cited in support thereof.

6. Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, defines an interested party as:a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation”.

7. Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides as follows: 7. (1)A person, with leave of the Court, may make an oral or written application to be joined as an interested party.(2)A court may on its own motion join any interested party to the proceedings before it.”

8. The court’s power to join a party to a petition as an interested party is discretionary and as such must be exercised judiciously. That means that an applicant seeking to be joined in a petition as an interested party must satisfy the court that he has a stake or an interest in the subject matter of the suit. In Francis Karioki Muruatetu & another v. Republic & 5 others, Petition No. 15 as consolidated with No. 16 of 2013 [2016] eKLR , the Supreme Court set out the guiding principles on applications for joinder of interested parties to petitions as follows:(i)The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.(ii)The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.(iii)Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”

9. I am satisfied from the affidavit in support of the Applicant’s application that the members of the Applicant have a stake in the subject matter of the petition and that they stand to suffer prejudice if they are not joined to the petition. The Applicant’s members are surveyors and other professionals in the land sector. The petition before the court concerns land subdivision and planning. The Petitioners have not denied that the subdivision of land is done by surveyors. One of the reliefs sought by the Petitioners is a declaration that all subdivisions undertaken without the involvement of a physical planner are null and void. The Petitioners have also sought to criminalise any approval that is undertaken of a subdivision without the involvement of a physical planner. I am persuaded that the Applicant has demonstrated its stake in the subject matter of the petition and the prejudice it is likely to suffer in the event of non-joinder. I also agree with the Applicant that its involvement in the suit will assist the court in reaching a just determination of the issues raised by the Petitioners.

10. In conclusion, I allow the Notice of Motion application dated 26th July 2024 in terms of prayers 2, 3 and 4 thereof.

DELIVERED AND DATED AT KISUMU ON THIS 11 TH DAY OF DECEMBER 2024S. OKONG’OJUDGERuling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of:Mr. Sala for the PetitionersN/A for the RespondentsN/A for the Interested PartiesMr. Kimono for the Proposed Interested PartyMs. J. Omondi-Court Assistant