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Court of AppealPartially AllowedCivil Appeal (Application) No. 3 of 2019· [2024] KECA 1257 (KLR)

M’imwenda & another v Mire (Civil Appeal (Application) 3 of 2019) [2024] KECA 1257 (KLR)

Court of Appeal
20 September 2024
2,768 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed an 85-year-old widow to join a land ownership appeal, confirming anyone likely to be affected by a decision has a right to be heard.

What this practically means

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Executive summary

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This was a Notice of Motion dated 4th August 2022 by Evangeline Kaungu M'Imwenda seeking to be enjoined in an appeal as an interested party and a stay of eviction from Plot No. 7918/75 Isiolo Township. The appeal, by Fridah Makandi Nteere as personal representative of Japhet Nteere Mwendwa, challenges a judgment of the Environment and Land Court delivered on 31st October 2018 in Meru ELC No. 260 of 2016 concerning ownership of the suit property, which is registered in the name of the applicant's deceased husband. The applicant, aged 85, contended she was the rightful administrator of the estate, that her son was wrongly sued, and that eviction orders had been obtained against her. The appellant did not oppose the joinder; the respondent opposed, arguing the application was an attempt to appeal by the back door after her own suit in Isiolo ELC was dismissed as res judicata. The Court applied the criteria from Civicon v Kivuwatt and Yawa v Chome: that the joinder must enable resolution of all matters in dispute, cause no prejudice, and not convolute the proceedings. Finding that the crux of the appeal is ownership of the suit property and that the applicant, as widow of the registered owner with letters of administration ad litem, would be directly affected, the Court held her participation integral. Relying on Mbaki v Macharia and David Kiptugen, it held that denying her a hearing would offend natural justice. The application was allowed, with leave to file pleadings within twenty-one days and corresponding leave for the parties to reply. Costs were ordered to abide the outcome of Civil Appeal No. 3 of 2019.

Key legal issues

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01

Joinder of an interested party in an appeal

Holding

The applicant, as widow of the registered owner of the suit property and likely to be affected by the appeal, was a necessary party whose participation was integral to the determination of the appeal.

Reasoning

The Court applied the Civicon and Yawa criteria for joinder. The crux of the appeal was ownership of the suit property, registered in the name of the applicant's deceased husband, for whose estate she held letters of administration ad litem. Denying her joinder would deprive her of a hearing on her claim, contrary to natural justice and the valued right to be heard as stated in Mbaki v Macharia.

p. 5
02

Stay of execution of the ELC decree

Holding

The Court did not pronounce itself expressly on the stay, addressing joinder first as the threshold issue.

Reasoning

The application sought both joinder and a stay of eviction. The Court determined that joinder should be dealt with first as it would determine whether the applicant would be party to further proceedings, and granted leave to file pleadings, with costs to abide the appeal.

p. 4

Legal principles established

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  • Joinder of a party as an interested party is warranted where the party's presence enables the court to resolve all matters in dispute, does not prejudice the other parties, and does not introduce unnecessary new matters.
  • A party need only demonstrate sufficient interest in a suit to be joined; the interest need not be one that must succeed at trial.
  • A person likely to be affected by the outcome of an appeal has a right to be heard under the rules of natural justice.

Court orders

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  1. 1.The Notice of Motion dated 4th August 2022 is allowed
  2. 2.Leave granted to the applicant to file and serve any necessary pleadings in Civil Appeal (Application) No. 3 of 2019 and Civil Appeal No. 3 of 2019 within twenty-one (21) days
  3. 3.The appellant and the respondent have corresponding leave to file a reply within twenty-one (21) days from the date of service
  4. 4.Costs of the application to abide the outcome of Civil Appeal No. 3 of 2019

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure ActSection 3 and 3(a)

Cases cited (11)

  • Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others
    Supreme Court Petition No. 12 of 2013, [2014] eKLR
  • John Harun Mwau vs Simone Hayson & 2 Others; Attorney General & 2 Others (IP)
    [2021] eKLR
  • Meme v Republic
    [2004] I EA 124
  • Civicom Limited vs Kivuwatt Limited and 2 Others
    [2015] eKLR
  • Communications Commission of Kenya & 4 Others vs. Royal Media Services Limited
  • Mbaruk Abdalla Suleiman & 5 others v Mombasa Cement Limited & 5 others
    [2018] eKLR
  • JMK vs MWM & another
    [2015] eKLR
  • Civicon Limited v Kivuwatt Limited and 2 others
  • Yawa & 35001 Others vs Chome (suing as the administrator of the Estate of Mumba Chome Ngala) (deceased) and 19 Others
    (Civil Application No. 100 of 2018) KECA 35 KLR
  • Mbaki & Others vs Macharia & Another
    [2005] 2 EA 206
  • David Kiptugen vs. Commissioner of Lands, Nairobi & 4 Others
    [2016] eKLR
On appeal from
Environment and Land Court
Meru ELC No. 260 of 2016
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "M’imwenda & another v Mire (Civil Appeal (Application) 3 of 2019) [2024] KECA 1257 (KLR)", Case Analysis (2024). Civil Appeal (Application) No. 3 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1257/eng@2024-09-20

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