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Court of AppealPartially AllowedCivil Appeal (Application) No. 172 of 2010· [2020] KECA 616 (KLR)

Rose Wakanyi Karanja & 3 others v Geofrey Chege Kirundi & another; Everton Coal Enterprises Limited (Interested Party) [2020] KECA 616 (KLR)

Court of Appeal
5 June 2020
Martha Karambu KoomeM. KoomeASAsike-MakhandiaJMJ. Mohammed
3,558 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a property buyer left out of an appeal can still be joined as an interested party after judgment, in exceptional circumstances.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Koome, Asike-Makhandia and J. Mohammed, JJ.A) determined a notice of motion by Everton Coal Enterprises Limited seeking to be joined as an interested party in Civil Appeal No. 172 of 2010 after that appeal had already been decided. The suit property, L.R No. 10090/23 in Juja, had been transferred back to the respondents under a High Court judgment, sold to the applicant for Kshs 100 million, and the applicant's registered transfer was then invalidated when the appellants' appeal was allowed without the applicant being a party or being served. The sole issue was whether joinder post-judgment was permissible. The court held that although a judgment normally renders a court functus officio, exceptional circumstances justify joining a party after judgment - notably where adverse orders are issued against a party given no notice or hearing. Rule 77 of the Court of Appeal Rules required service on all persons directly affected; the appellants knowingly failed to serve the applicant despite knowing of its interest, breaching the fundamental right to be heard. Applying the tests for interested parties from Communications Commission of Kenya and Meme v Republic, the court found the applicant held unchallenged title, had a stake in the proceedings, and would suffer substantial prejudice if denied joinder. The application was allowed in terms of prayer 2, joining the applicant as an interested party, with no order as to costs. The decision enables the applicant to participate in any subsequent review or Supreme Court proceedings.

Key legal issues

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01

Whether a party can be joined as an interested party after judgment has been delivered

Holding

Yes, in exceptional circumstances - where adverse orders were made against a party who was neither notified nor heard, and where the joinder is necessary for conclusive determination without prejudice to others.

Reasoning

The court acknowledged that normally a judgment renders a court functus officio, but recognised an exception where a party affected by adverse orders was denied notice and a hearing. The appellants knowingly omitted the applicant despite knowing of the transfer of the suit property. The applicant held title, had a stake in the proceedings, and its presence was necessary to resolve the dispute conclusively and prevent proliferated litigation.

p. 4
02

Whether failure to serve the applicant with the notice and record of appeal breached Rule 77 and infringed the right to be heard

Holding

Yes. The appellants knew of the applicant's and Josvir Traders' interests in the suit property but failed to serve, denying the applicant the right to be heard.

Reasoning

Rule 77(1) requires service of the notice of appeal on all persons directly affected by the appeal. It was not disputed that the appellants knew the applicant and Josvir Traders Agencies Limited had interests in the suit property. Non-adherence to Rule 77 denied the applicant participation in the appeal, offending the fundamental right to be heard before an adverse decision as articulated in Mbaki & Others v Macharia.

p. 3
03

Who qualifies as an interested party and whether the applicant met the criteria

Holding

The applicant qualified: it held title to the suit property, had a stake in the proceedings, would be affected by the decision, and would suffer substantial prejudice if joinder were denied.

Reasoning

Applying the Communications Commission of Kenya test and the Meme v Republic criteria, the court found the applicant had a stake as current registered owner of the suit property, was affected by the appellate judgment which revoked the transfer to it, and its interests could only be properly articulated if it appeared. Joinder would also protect its rights and prevent proliferated litigation.

p. 5

Legal principles established

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  • The right to be heard before an adverse decision is made against a party is fundamental, and rights cannot be prejudiced without an opportunity to be heard.
  • A party may be joined to proceedings even after judgment where exceptional circumstances exist, such as where adverse orders were issued against a party who was never notified or heard.
  • As a general rule, a judgment terminates the court's jurisdiction and renders it functus officio, save as expressly provided by law.
  • Under Rule 77 of the Court of Appeal Rules, an intended appellant must serve the notice of appeal on all persons directly affected by the appeal.
  • The guiding principle in joinder of parties is that joinder should be freely allowed at any stage of the proceedings, provided it does not result in prejudice or injustice to the other party.

Court orders

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  1. 1.The Notice of Motion dated 23rd September, 2016 was allowed in terms of prayer 2
  2. 2.Everton Coal Enterprises Limited joined in the proceedings as an interested party
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 20(3)
  • Constitution of KenyaArticle 25(c)
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 60(1)(b)(d)
  • Constitution of KenyaArticle 159(2)(a)(d)
  • Constitution of KenyaArticle 163(4)(b)
  • Constitution of KenyaArticle 259(1)
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Appellate Jurisdiction ActSection 3(2) & (3)
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Court of Appeal RulesRule 77(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 5(d)(ii)
  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (6)

  • Mbaki & Others v Macharia & Another
    [2005] 2 EA 206
  • J M K v M W M & Another
    [2015] eKLR
  • Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others
    [2016] eKLR
  • Communications Commission of Kenya & 4 Others v Royal Media Services Limited & 7 Others
    [2014] eKLR
  • Meme v Republic
    [2004] 1 EA 124
  • Tang Gas Distributors LTD. vs. Said & Others
    [2014] EA 448
On appeal from
Court of Appeal at Nairobi (Warsame, Mwilu & Sichale, JJ.A)
Civil Appeal No. 172 of 2010
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 1(2), 42, 43 and 77(1) of the Court of Appeal Rules (application for review of the Court of Appeal judgment; prospective further proceedings including review and certification to the Supreme Court under Article 163(4)(b))

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Rose Wakanyi Karanja & 3 others v Geofrey Chege Kirundi & another; Everton Coal Enterprises Limited (Interested Party) [2020] KECA 616 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 172 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/616/eng@2020-06-05

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