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Court of AppealPartially AllowedNakuru Civil Appeal No. E063 of 2023 (Application dated 6th June 2023)· [2024] KECA 68 (KLR)

Jubat v Laton & 5 others; Obunga (Proposed Interested Party) (Civil Appeal (Application) E063 of 2023) [2024] KECA 68 (KLR)

Court of Appeal of Kenya
2 February 2024
ASAsike-MakhandiaFOF. OchiengWKW. Korir
2,290 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a landowner whose title was nullified without hearing him to join the appeal as an interested party.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal, Nakuru (Asike-Makhandia, F. Ochieng and W. Korir, JJA) on an application by Zephaniah Obunga to be joined as an interested party in Nakuru Civil Appeal No. E063 of 2023. The appeal challenges a judgment of the Environment and Land Court at Kilgoris which nullified and cancelled the title to Transmara/Enaenyieny/672, of which the applicant is the sole registered owner. The applicant said he was neither party to nor aware of the trial proceedings and learned of the judgment only when the Land Registrar demanded surrender of his title. The 1st to 3rd respondents opposed, arguing the applicant's interests had been defended at trial by the Land Registrar, that his acquisition violated lis pendens, and that a similar joinder application was pending before the E&LC. The court declined to strike out the application, noting the E&LC applicant was a different person and that a trial court cannot join a party to a pending appeal. Applying the Trusted Society of Human Rights Alliance definition and the criteria in CREAW v Mwau, the court held the applicant had established his stake, interest and relevance, and that denying joinder would leave him condemned unheard in breach of natural justice. It rejected the argument that the Land Registrar had litigated the applicant's cause. The application was allowed; the applicant was joined as an interested party, with costs of the application to abide the outcome of the appeal. The court did not disturb any decision below; its binding contribution is the test for joinder of interested parties at the appellate stage.

Key legal issues

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01

Whether the applicant made a proper case for admission as an interested party to the appeal

Holding

Yes. The applicant, as registered owner of LR No. Transmara/Enaenyieny/672 whose title was nullified by the judgment under appeal, established his stake, interest and relevance and would be prejudiced (condemned unheard) if denied joinder.

Reasoning

The court applied the Trusted Society definition of an interested party and the Okwengu JA criteria. The applicant demonstrated prima facie registered ownership of a parcel originating from the suit property; he was not a party at trial and claims ignorance of the proceedings. Denial of joinder would leave his title revoked without a hearing, violating natural justice. His interests were not covered by the Land Registrar's litigation.

p. 4
02

Whether the application should be struck out for failure to disclose a similar joinder application before the E&LC

Holding

No. The person seeking joinder before the E&LC was not the applicant, and in any event the trial court cannot join a party to a pending appeal.

Reasoning

Counsel for the respondents later confirmed the E&LC applicant was a different person, so no duty of disclosure arose. Further, jurisdictionally, only the appellate court can admit parties to its own appeal, making the E&LC application immaterial.

p. 3

Legal principles established

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  • An interested party is one with a stake in proceedings who will be affected by the court's decision either way, though not a party ab initio
  • A party seeking joinder in an appeal must clearly establish their stake and relevance in the proceedings and demonstrate prejudice if denied joinder
  • A government officer's appearance in proceedings does not amount to litigating another party's cause; a party cannot rely on such representation to defeat a joinder application
  • A trial court has no authority to join a party to an appeal pending before the Court of Appeal

Court orders

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  1. 1.The notice of motion dated 6th June 2023 is allowed
  2. 2.The applicant is joined in Nakuru Civil Appeal No. E063 of 2023 as an interested party
  3. 3.Directions on the filing of a response by the applicant shall be as will be issued in the appeal
  4. 4.The costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rules 1(2), 42, 47
  • Court of Appeal Rules, 2022Rule 79
  • Appellate Jurisdiction ActSection 3(2)
  • Constitution of Kenya, 2010Article 159
  • Land Registration ActSection 28(b)

Cases cited (5)

  • Communications Commission of Kenya & 4 others v. Royal Media Services Ltd & 7 others
    [2014] eKLR
  • Elton Homes v. Davis & others
    [2019] eKLR
  • Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others
    [2014] eKLR
  • Center for Rights Education and Awareness & another v. John Harun Mwau & 6 others
    [2012] eKLR
  • Commercial Bank of Africa Case
Jurisdiction invoked
Rules 1(2), 42 and 47 of the Court of Appeal Rules, 2022; section 3(2) of the Appellate Jurisdiction Act; article 159 of the Constitution

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, "Jubat v Laton & 5 others; Obunga (Proposed Interested Party) (Civil Appeal (Application) E063 of 2023) [2024] KECA 68 (KLR)", Case Analysis (2024). Nakuru Civil Appeal No. E063 of 2023 (Application dated 6th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/68/eng@2024-02-02

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