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Court of AppealDismissedCivil Appeal No. 583 of 2019· [2020] KECA 326 (KLR)

Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others [2020] KECA 326 (KLR)

Court of Appeal
9 October 2020
3,917 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that parties can be joined in a land case even after judgment if their property interests would be lost without being heard.

What this practically means

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Executive summary

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This appeal challenged a ruling of the Environment and Land Court at Thika (L. Gacheru, J.) dated 25th October 2019, which allowed the 4th, 5th and 6th respondents (a subsequent purchaser of the suit property and two chargees) to be joined in a suit after final judgment had been entered in favour of the appellants on 23rd February 2018, reviewed and set aside that judgment, and ordered the 4th respondent's restoration to occupation following his eviction in execution. The Court of Appeal (Musinga, Kiage and Gatembu Kairu, JJ.A.) dismissed the appeal in a single judgment of the court. It held that joinder under Order 1 Rule 10(2) may be ordered at any stage of the proceedings, and that since the applicants also sought review and setting aside of the judgment - and the judgment had only been partially executed (eviction effected, transfer not completed) - there was nothing preventing the joinder. The court applied its own decision in JMK vs. MWM & another and declined to disturb the Judge's exercise of discretion, finding no misdirection or plainly wrong decision. On the second issue, the court held that the 4th respondent, the registered proprietor in occupation, and the 6th respondent, holder of a registered first charge, faced extinction of their interests without a hearing; decisions reached in breach of natural justice are set aside as of right. The appellants' failure to produce a certified copy of the title as required by Order 21 Rule 6 contributed to the adverse judgment. The appeal was dismissed with costs to the 4th, 5th and 6th respondents, and the ELC ruling was affirmed in its entirety.

Key legal issues

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01

Whether joinder of parties is permissible after judgment has been delivered

Holding

Joinder after judgment is permissible where the applicant also seeks review and setting aside of the judgment; enforcement proceedings were still ongoing and the judgment had only partially been executed, so the rule was not inapplicable.

Reasoning

The court held that Order 1 Rule 10(2) permits joinder 'at any stage of the proceedings', and following Mulla on the Indian Code, the bar applies only where a suit is finally disposed of with nothing more to be done. Here the judgment had been partially executed - the 4th respondent evicted but the property not yet transferred - so there was something to stay, and the applicants also sought review of the judgment. The Judge's discretionary decision to join the 4th to 6th respondents was therefore not open to interference.

p. 4
02

Whether the Judge erred in setting aside the entire judgment and ordering a trial de novo

Holding

No error: the 4th respondent, the registered proprietor in occupation, and the 6th respondent, holder of a registered first charge, would have their interests extinguished by the judgment without having been heard; a decision reached in breach of natural justice is set aside as of right.

Reasoning

The judgment of the ELC would extinguish the registered interests of the 4th and 6th respondents without a hearing. The appellants' failure to produce a certified copy of the title as required by Order 21 Rule 6 concealed those interests. Relying on Onyango vs. Attorney General and Mbaki vs. Macharia, the court affirmed that decisions reached in breach of the rules of natural justice are set aside as of right, and agreed with the Judge's reasoning on the constitutional right to be heard and protection of property.

p. 5
03

Standard for appellate interference with judicial discretion

Holding

An appellate court cannot interfere with the exercise of judicial discretion unless it is shown the discretion was not exercised judicially - misdirection, misapprehension of facts, extraneous or ignored considerations, or a plainly wrong decision.

Reasoning

Adopting Sir Charles Newbold's classic statement in Mbogo vs. Shah, the court reiterated the limited grounds for interfering with a lower court's exercise of discretion. The appellants had not demonstrated any misdirection in law, misapprehension of facts, extraneous considerations, failure to consider relevant considerations, or that the decision was plainly wrong, so the court had no basis for interfering.

p. 4

Legal principles established

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  • Joinder under Order 1 Rule 10(2) of the Civil Procedure Rules may be ordered at any stage of the proceedings, and where an applicant also seeks review and setting aside of the judgment, joinder after judgment is permissible even though the suit has been concluded.
  • A judgment that extinguishes the registered interest of a person who was not joined or heard is liable to be set aside as of right, ex debito justitiae, for breach of natural justice; parties directly and legally interested in the subject matter are necessary and proper parties.
  • An appellate court will not interfere with the exercise of judicial discretion by a lower court unless it is shown that the discretion was not exercised judicially - that the judge misdirected himself, misapprehended the facts, considered extraneous matters, or the decision is plainly wrong.
  • Where a judgment would alter the title to registered land, Order 21 Rule 6 of the Civil Procedure Rules requires production of a certified copy of the title before judgment is delivered; failure to do so, which conceals third-party interests, may result in adverse decisions without a hearing.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the 4th, 5th and 6th respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 21 Rule 6
  • Civil Procedure RulesOrder 22 Rule 22(2)
  • Civil Procedure RulesOrder 22 Rule 25
  • Civil Procedure RulesOrder 22 Rule 30
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 88
  • Land Registration ActSection 80
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159

Cases cited (9)

  • JMK vs. MWM & another
  • Dakianga Distributors (K) Ltd vs. Kenya Seed Company Limited
    [2015] eKLR
  • Independent Electoral and Boundaries Commission & another vs. Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Saulo Kandie vs. James Kwambai Cheruiyot
    [2019] eKLR
  • Michael Maina & another vs. Stanley Kigara Kagombe
    [1996] eKLR
  • Onyango vs. Attorney General
    (1986-1989) EA 456
  • Mbaki & others vs. Macharia & another
    [2005] 2 EA 206
  • Patriotic Guards Ltd vs. James Kipchirchir Sambu
    [2018] eKLR
  • Mbogo & Another vs. Shah
    [1968] E.A. 93
On appeal from
Environment and Land Court at Thika
Thika ELC Case No. 276 'A' of 2017 (Formerly Nairobi ELC Case No. 193 of 2010)
Jurisdiction invoked
First appeal to the Court of Appeal from the Environment and Land Court (not expressly stated; appeal lies as of right under the appellate framework governing ELC rulings)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others [2020] KECA 326 (KLR)", Case Analysis (2020). Civil Appeal No. 583 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/326/eng@2020-10-09

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