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Court of AppealDismissedCivil Appeal No. 292 of 2001· [2008] KECA 223 (KLR)

Yiapas Ole Seese & 4 others v Sakita Ole Narok & 2 others [2008] KECA 223 (KLR)

Court of Appeal
6 June 2008
SBS.E.O. BosireEOE.O. O'KubasuJAJ. Aluoch
2,776 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that consent orders in representative land suits collapse if the affected group members were never notified.

What this practically means

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Executive summary

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The appellants, members of Batimaru Group Ranch, sued the ranch's chairman, secretary and treasurer representatively on behalf of about 450 members, seeking enforcement of transfers of sub-divisions of land parcel Kajiado/Lorngorsua/63. Their chamber summons, purportedly under Order 1 rule 8(1) of the Civil Procedure Rules and section 3A of the Civil Procedure Act, resulted in a consent order of 14th March 2001 by which the Deputy Registrar was directed to execute transfers and titles in the appellants' favour. Non-notified members of the Group Ranch applied to be joined and for the consent order to be set aside. Kasanga Mulwa, J held that the Group Ranch still existed, that the appellants could only sue on their own behalf, and that they had misled the court by non-disclosure of an earlier suit (HCCC No. 561 of 2000), and set aside the consent order. The Court of Appeal (Bosire, O'Kubasu and Aluoch, JJA) in a single unanimous judgment dismissed the appeal. It held that Order 1 rule 8(2), which mandates court-directed notice to all represented persons, is a mandatory requirement; until such notice is served and the represented persons have elected whether to join, any step in the proceedings is ex parte as against them and liable to be set aside as of right. The Court declined to determine whether parcel No. 63 still existed or to resolve the non-disclosure dispute, leaving those for the trial court. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the consent order of 14th March 2001 was properly set aside notwithstanding the presence and consent of the named parties

Holding

Yes. Although the named defendants were present and consented, the persons for whose benefit the representative suit was filed had not been served with notice under Order 1 rule 8(2); steps taken before such notice are ex parte as against them.

Reasoning

The court distinguished ordinary ex parte proceedings between adversaries: here the absent persons were not adversaries but beneficiaries of the representative suit, who must first be notified so they may elect whether to become parties. Until that election, any step in the proceedings is ex parte in these special circumstances, entitling an aggrieved person to setting aside as of right, consistent with Mulla on the Indian Code of Civil Procedure.

p. 5
02

Whether leave and notice in a representative suit fall under Order 1 rule 8(1) or rule 8(2)

Holding

Rule 8(1) governs the right to sue or be sued representatively; the mandatory duty to direct notice to represented persons falls on the court under rule 8(2), and the appellants invoked the wrong sub-rule.

Reasoning

The court read rule 8(1) as not addressing notice to represented parties. Rule 8(2), worded in mandatory terms, places the duty squarely on the court to direct notice by personal service or public advertisement. Strict compliance is required; otherwise a decree in a representative suit must be set aside and the case proceeded with in accordance with law.

p. 2
03

Whether the Court of Appeal should determine the continued existence of parcel No. 63 and of the Group Ranch, and the alleged non-disclosure of Civil Case No. 561 of 2000

Holding

No. The existence of parcel No. 63 is a main issue for the trial court, and the evidence on non-disclosure was inadequate for a final decision on this interlocutory appeal.

Reasoning

The court emphasized caution in an interlocutory appeal, declining to encroach on the trial court's province. On non-disclosure, it noted there was a dispute as to the appellants' awareness of the earlier suit and held the evidence inadequate to make a final decision, finding no basis to belabour the point given the appeal's dismissal on the notice issue.

p. 5

Legal principles established

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  • Compliance with Order 1 rule 8(2) of the Civil Procedure Rules, requiring notice of a representative suit to all persons represented, is mandatory and must precede any substantive step in the suit.
  • Where a representative suit is brought under Order 1 rule 8, proceedings taken before the represented persons have been given notice and the opportunity to elect whether to join as parties are treated as ex parte and are liable to be set aside as of right by any person aggrieved.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 8(1)
  • Civil Procedure RulesOrder 1 rule 8(2)
  • Civil Procedure Actsection 3A

Cases cited (1)

  • R v Kensington Income Tax Commissioners for the District of Kensington, ex parte Princess De Polignac
    (1917) 1 KB 486
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 233 of 2001
Jurisdiction invoked
First appeal / interlocutory appeal to the Court of Appeal from the ruling and order of the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Yiapas Ole Seese & 4 others v Sakita Ole Narok & 2 others [2008] KECA 223 (KLR)", Case Analysis (2008). Civil Appeal No. 292 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/223/eng@2008-06-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.