Mbarak v Freedom Limited & 4 others

Relying on the Supreme Court's decision in JMK vs. MWM, the majority held that the power to add parties exists only before or during trial, and lapses once a suit is finally disposed of. The applicant and the 3rd to 5th respondents were never parties in the ELC or on appeal and never sought joinder before determination. Any stranger to the concluded proceedings is barred from seeking joinder this late in the day.

The majority followed its own prior decisions in Mukesh Kumar Kantilal Patel, Jennifer Koinante Kitarpei and Everton Coal Enterprises, which uniformly hold that rule 5(2)(b) contemplates a stay of a lower court's judgment while an appeal is pending, not a stay of the Court's own final orders. On conclusion of the appeal the Court becomes functus officio and lacks jurisdiction to stay its final decision.

The majority relied on the Supreme Court's decisions in Law Society of Kenya vs. Communications Authority, Raila Odinga and Kaluma vs. NGO Co-ordination Board, holding that relief cannot be granted at the appellate stage to a party who did not litigate below, and that the court cannot entertain review by a non-party as it goes to the sanctity of the determined suit. The functus officio doctrine forecloses review by a stranger.

The dissent distinguished Law Society of Kenya and Kaluma on the basis that the Supreme Court's review power is statutorily confined to parties under section 21A of the Supreme Court Act, whereas this Court's residual jurisdiction is drawn from the constitutional dispensation and section 3A of the Appellate Jurisdiction Act. The school's denial of a hearing, the risk of eviction, and the appellant's concession of 4 acres constituted exceptional circumstances justifying limited review.