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Court of AppealDismissedCivil Appeal No. 23 of 2015· [2018] KECA 349 (KLR)

Twiga Estate Squatters Society v Municipal Council of Ruiru & 8 others [2018] KECA 349 (KLR)

Court of Appeal
27 April 2018
RNR. N. NambuyeASAsike-MakhandiaWilliam OukoW. Ouko
2,737 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to let a squatters' society join a land case, ruling judges may weigh a party's history of repeatedly suing over the same property.

What this practically means

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Executive summary

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The appellant, Twiga Estate Squatters Society, a registered society whose members allegedly number about 4,000 squatters, appealed against a ruling of the High Court (J. M. Mutungi, J.) delivered on 24th November 2014 in H.C. ELC No. 57 of 2012. The appellant had sought to be enjoined in that suit as an interested party and to set aside, vary or review consent orders of 13th February 2012 under which the defendants were restrained, evicted on 20th December 2012, and the 1st respondent (the registered owner) was permitted to demolish structures on land parcels 9312, 9313 and 3760 forming Twiga Estate Farm near Ruiru. The appellant alleged the respondents had conspired to file a 'friendly' suit and enter a fraudulent consent to evict its members, and that refusal of joinder infringed its rights under Articles 48 and 50 of the Constitution. The learned Judge refused joinder, finding the appellant had previously litigated over the suit property under various Twiga Estate names and that allowing joinder would sanction flagrant abuse of the court process. The Court of Appeal, applying the settled principles in Mbogo v Shah, Patel v EA Cargo Handling Services, Matiba v Moi and the Supreme Court's decision in Peter Gichuki King'ara, held that a judge's exercise of discretion may only be disturbed on proof of misdirection or clear error occasioning misjustice. Finding no such error, and noting the appellant had not controverted the evidence of its prior suits, the Court dismissed the appeal with costs on 27th April 2018.

Key legal issues

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01

Interference with discretionary decisions of the High Court on appeal

Holding

The Court of Appeal will only interfere with a judge's exercise of discretion where it is shown the judge misdirected himself in some matter, was clearly wrong in the exercise of discretion, and that misjustice resulted

Reasoning

The court restated the settled principles in Mbogo v Shah, Patel v EA Cargo Handling Services and Matiba v Moi: an appellate court is not entitled to substitute its own discretion for that of the judge. It must be demonstrated that the judge misdirected himself, acted on matters he should not have acted on, failed to consider matters he should have considered, or was manifestly clearly wrong causing misjustice. Mere disagreement with the outcome is insufficient.

p. 3
02

Refusal of joinder based on the applicant's prior litigation conduct and abuse of process

Holding

The Judge was entitled to consider the appellant's myriad previous suits over the suit property under various names and to conclude that allowing joinder would aid continued abuse of the court process

Reasoning

Judicial discretion must be exercised judiciously and within parameters, with reasons given. The Judge gave reasons grounded in uncontroverted evidence: the appellant and its precursors (Twiga Men & Women Group, Twiga Estate Squatters, Twiga Squatters Estate) had filed multiple suits over the same property, including HCCC No. 781 of 2014, HCCC No. 487 of 2010, HCCC No. 170 of 2010 and HCCC No. 149 of 2011 (O.S). Enjoining the appellant would enable any faction under any of the several names to make similar applications. The appellant did not challenge or controvert that evidence.

p. 3

Legal principles established

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  • An appellate court will not interfere with the exercise of judicial discretion by a judge merely because it would have reached a different conclusion; it must be shown the judge misdirected himself, acted on wrong principles, or was clearly wrong resulting in misjustice
  • In exercising discretion, a court must interrogate the conduct of the party seeking the discretionary exercise, including the party's past litigation conduct

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant to pay costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (8)

  • Mbogo v Shah
    (1968) EA 93
  • Patel v EA Cargo Handling Services Ltd
    (1974) EA 75
  • Pithon Waweru Maina v Thuka Mugiria
    (1983) eKLR
  • Peter Gichuki King'ara v Independent Electoral and Boundaries Commission & 2 Others
    (2014) eKLR
  • Matiba v Moi & 2 Others
    (2008) 1 KLR 670
  • Civicon Limited v Kivuwatt Limited & 2 Others
    [2015] eKLR
  • JMK v Mwai & Another
    Civil Appeal No. 15 of 2015
  • Mbo-i-Kamiti Farmers Co. Ltd v Simon Charagu Kimani & 4 Others
    ELC Civil Suit No. 170 of 2010
On appeal from
High Court of Kenya at Nairobi (Land & Environmental Court Division)
H.C. ELC No. 57 of 2012
Jurisdiction invoked
First appeal from the High Court to the Court of Appeal (Article 164 of the Constitution); no specific provision invoked in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Twiga Estate Squatters Society v Municipal Council of Ruiru & 8 others [2018] KECA 349 (KLR)", Case Analysis (2018). Civil Appeal No. 23 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/349/eng@2018-04-27

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