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Court of AppealPartially AllowedCivil Appeal (Application) No. 20 of 2020· [2021] KECA 623 (KLR)

NMN v MKN (suing as next friend of PKN (being a person of unsound mind); Esther Wacu Kiharu & 11 others (Interested Parties) [2021] KECA 623 (KLR)

Court of Appeal of Kenya
7 May 2021
652 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal allowed twelve land occupiers to join an appeal as interested parties because the outcome directly affected their possession, even though they missed the original trial.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nairobi (Koome, Kiage and Murgor JJ.A) on a notice of motion dated 21st February 2020 in Civil Appeal (Application) No. 20 of 2020, an appeal against the judgment of Mbugua, J. of the Environment and Land Court at Thika delivered on 2nd May 2019 in ELC No. 373 of 2017 concerning land known as Ruiru East/Block x/xxx. Twelve applicants sought to be joined as interested parties in the appeal and an injunction restraining the respondent from demolishing, transferring, trespassing on or otherwise interfering with the subject land pending the appeal. They claimed to have been in active and quiet possession since 2005, to hold share certificates for their respective parcels, and to have been unaware of the trial proceedings despite the trial court having been notified of their presence; they asserted a prima facie case under Giella vs Cassman Brown Co. Ltd [1973] EA 358. Counsel for the applicant did not oppose joinder; the respondent, though served, did not appear or file submissions. At the hearing, counsel for the interested parties abandoned the injunction and other prayers, confining the application to joinder. The court held that the applicants were persons directly affected by the appeal within rule 77 of the Court of Appeal Rules and that, having regard to natural justice and the interests of justice, they had to be joined. The application was allowed to that extent only: the twelve individuals were joined as interested parties, directed to be served with the appeal and related documents, with costs in the appeal. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Joinder of parties claiming possession of the subject land who did not participate in the trial proceedings

Holding

The 12 applicants were joined as interested parties in the appeal

Reasoning

The applicants claimed active possession of the subject land since 2005 and held share certificates for their respective parcels, yet did not participate in the Environment and Land Court proceedings despite the court having been notified of their presence. The trial court's determination adversely affected them. As persons directly affected by the appeal under rule 77 of the Court of Appeal Rules, and in line with the rules of natural justice, the interest of justice necessitated their joinder. The applicant did not oppose the application; the respondent, though served, did not appear or file submissions.

p. 2
02

Injunction pending appeal based on Giella v Cassman Brown principles

Holding

Not determined; the prayer was abandoned at the hearing

Reasoning

The interested parties had sought an injunction on the basis that they had established a prima facie case with a chance of success as set out in Giella vs Cassman Brown Co. Ltd. However, at the hearing their counsel abandoned this prayer along with the other prayers in the application, confining the application to joinder. The court therefore made no findings on the merits of the injunction and granted only the joinder relief.

p. 2

Legal principles established

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  • Persons directly affected by an appeal must be joined as interested parties under rule 77, having regard to the rules of natural justice and the interests of justice

Court orders

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  1. 1.The 12 individuals named in the title joined in the appeal as Interested Parties
  2. 2.The Interested Parties to be served with a copy of the appeal and other related documents
  3. 3.Costs in the appeal
  4. 4.It is so ordered
On appeal from
High Court of Kenya at Thika (Environment and Land Court)
ELC No. 373 of 2017
Jurisdiction invoked
Rule 77 of the Court of Appeal Rules (joinder of interested parties in an appeal)

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, "NMN v MKN (suing as next friend of PKN (being a person of unsound mind); Esther Wacu Kiharu & 11 others (Interested Parties) [2021] KECA 623 (KLR)", Case Analysis (2021). Civil Appeal (Application) No. 20 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/623/eng@2021-05-07

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