Mastro Holdings Limited v Njenga & 5 others
The bottom line
#Kenya's Court of Appeal allowed Co-operative Bank to join a land appeal as an interested party, confirming that anyone whose property rights a judgment affects must be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether a non-party chargee whose statutory power of sale was impugned is 'directly affected' for purposes of rule 77
Yes; the chargee's property rights and exposure to indemnity suits make it directly affected, entitling it to be joined as interested party.
The court applied its earlier construction of 'affected' in CREAW v Mwau, drawing on Pattni and Commercial Bank of Africa. The chargee was central to whether the loan existed and the auction was lawful; its absence at trial meant its rights were determined unheard, which would offend natural justice.
Whether additional evidence should be admitted under rule 29
Yes, exceptionally; because the applicant was not a party at trial the evidence could not have been availed, there was no inordinate delay, and the evidence is in the respondent's possession so no prejudice arises.
The court weighed the restrictive principles in Wanjie v Sakwa and Mburu v Sheikh against the interest of doing justice. Since the joinder would be pointless without the evidence, and the maker's affidavit with annexures was central to title, admission was warranted.
Whether the applicant bears the consequence of the appellant's alleged non-compliance with rule 77 service timelines
No; any non-compliance by the appellant is not attributable to the applicant and the respondent may pursue it elsewhere.
The respondent argued service was effected 12 months late under rule 77. The court held the applicant could not be denied joinder for the appellant's default; the point was left to the respondent to raise separately against the appellant.
Legal principles established
#- A person directly affected by a judgment under rule 77 is, at least, one whose property rights are affected by the judgment appealed from, whether or not a party in the lower court.
- Joinder of a party whose rights were determined in their absence is necessary to uphold natural justice and the right to be heard.
- A non-party whose evidence could not have been availed at trial may be permitted to adduce additional evidence on appeal.
Court orders
#- 1.Co-operative Bank of Kenya Limited joined in the appeal as an interested party
- 2.Application for adduction of additional evidence allowed to the extent of the affidavit of Sisto Macharia and the annexures thereto
- 3.Both prayers in the application allowed
- 4.Costs in the appeal
- On appeal from
- Environment and Land Court
- Nairobi ELC Case No. 226 of 2016
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act; rules 1(2), 29(1) & (2), 42, 43 and 77(1) of the Court of Appeal Rules; articles 10, 20(3), 25(c), 40, 48, 50, 60(1)(b)(d), 159(2)(a)(d), 163(4)(b) and 259(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mastro Holdings Limited v Njenga & 5 others", Case Analysis (2022). Civil Appeal (Application) 632 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1337/eng@2022-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.