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Court of AppealPartially AllowedCourt of Appeal application (joinder) in appeal against ELC judgment of S. Okong'o, J. delivered 4th August 2022· [2024] KECA 448 (KLR)

Kenya United Sports Limited v Kimemiah & 6 others; Hotel Destination Limited & 2 others (Applicant) (Civil Appeal (Application) E301 of 2023) [2024] KECA 448 (KLR)

Court of Appeal
12 April 2024
1,241 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal let three land purchasers join an appeal as interested parties, but only to make arguments—not to file new evidence or halt execution of the judgment.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (S. Gatembu Kairu, J. Lesiit and G.W. Ngenye-Macharia, JJ.A) on three consolidated joinder applications arising from an appeal against a judgment of the Environment and Land Court (S. Okong'o, J.) delivered on 4th August 2022. The ELC had decreed that L.R. No. 13873, Karen Plains, Nairobi is wholly owned by the 1st respondent; that titles held by several other respondents and the appellant are fraudulent, null and void and cancelled; and that the appellant's subdivision of the property was null and void. Hotel Destination Limited, Batula Hassan Abdi and Magic Industries Limited - each claiming to have purchased subdivisions of the suit property from the appellant - applied to be joined as interested parties, with further prayers for leave to file evidence, remittal for retrial, injunctions and stay of execution. The Court held that although there was no privity of contract between the applicants and the 1st respondent, there was privity of estate since the claimed subdivisions were offshoots of the suit property; following Commercial Bank of Africa Limited v Isaac Kamau Ndirangu, persons whose property rights are affected by a judgment are 'a person affected by the appeal' under rule 79 of the Court of Appeal Rules. The joinder applications succeeded only to the extent that the three applicants were joined and would be heard by submissions. Leave to file affidavits or evidence was refused because the Court does not conduct trials, and the injunction and stay prayers, coming so late after the impugned judgment, were declined as devoid of merit. Costs were in the appeal.

Key legal issues

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01

Test for joinder as interested party on appeal

Holding

An applicant who demonstrates an interest in the subject matter of the appeal, even without privity of contract with a party, is entitled to be joined and heard; privity of estate suffices.

Reasoning

Although there was no privity of contract between the applicants and the 1st respondent, the subdivisions the applicants claim are offshoots of the suit property, so the impugned ELC judgment affects their property rights. Citing Commercial Bank of Africa Ltd v Isaac Kamau Ndirangu, the Court held such persons are 'a person affected by the appeal' under rule 79 and must be heard.

p. 3
02

Whether joined interested parties may file evidence on appeal

Holding

Interested parties are entitled to file submissions and be heard, but not to file affidavits or other evidence on appeal.

Reasoning

The Court of Appeal does not conduct trials; it reviews the decision below. Since there is no trial at the appellate stage, there is no basis for admitting fresh evidence from newly joined interested parties. Their participation is confined to oral and written submissions at the hearing of the appeal.

p. 3
03

Whether injunction or stay of execution should issue for newly joined parties

Holding

Prayers for injunction or stay made long after delivery of the impugned judgment are declined.

Reasoning

The applicants knew or ought to have known of the ELC proceedings (including a 2017 order of arrest of any person on the property) and did nothing. Applications for conservatory relief coming so late after judgment would unduly confound the appeal and were held devoid of merit.

p. 3

Legal principles established

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  • A person whose property rights are affected by a judgment is 'a person affected by the appeal' within rule 79 of the Court of Appeal Rules, and privity of estate (as opposed to privity of contract) suffices to found joinder as an interested party.

Court orders

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  1. 1.Hotel Destination Limited, Batula Hassan Abdi and Magic Industries Limited are joined in the appeal as interested parties and will be at liberty to address the Court during the hearing of the appeal
  2. 2.The prayers for filing affidavits or other evidence are declined
  3. 3.The prayers for injunction or stay of execution of the ELC judgment are declined
  4. 4.Costs of the applications shall be in the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 79

Cases cited (4)

  • Francis Kariuki Muruatetu
    [2016] eKLR
  • Communications Commission of Kenya & others v Royal Media Limited & others
    SC Petition No. 15 of 2014
  • Trusted Society of Human Rights v Mumo Matemo & others
    [2014] eKLR
  • Commercial Bank of Africa Limited v Isaac Kamau Ndirangu
    Civil Appeal No. 157 of 1991, [1992] eKLR
On appeal from
Environment and Land Court
Jurisdiction invoked
Court of Appeal Rules, rule 79 ('a person affected by the 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, "Kenya United Sports Limited v Kimemiah & 6 others; Hotel Destination Limited & 2 others (Applicant) (Civil Appeal (Application) E301 of 2023) [2024] KECA 448 (KLR)", Case Analysis (2024). Court of Appeal application (joinder) in appeal against ELC judgment of S. Okong'o, J. delivered 4th August 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/448/eng@2024-04-12

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