Millicent Zighe Mwachala v Jeremiah Mghanga Msafari & 3 others
The bottom line
#Kenya's Court of Appeal confirmed that a landowner wrongly left out of a court case can join it later and get a fresh hearing.
What this practically means
#Executive summary
#Key legal issues
#Joinder of an interested party post-judgment
An interested party with an identifiable stake who was deliberately excluded from proceedings may be joined on appeal through setting aside of the judgment and remission for hearing de novo
The Court acknowledged that joinder under Order 1 rule 10(2) contemplates pending proceedings and that a court becomes functus officio on the merits once final judgment is entered. However, it held that the principle does not bar appellate proceedings in which the appellate court may set aside the trial court’s decision and remit the matter for hearing de novo. The 1st respondent, the registered proprietor, had been intentionally concealed and excluded, risking dispossession without a hearing in breach of Articles 40 and 50 of the Constitution.
Interference with discretionary decision of the trial court
The learned Judge was not at fault in setting aside the trial Magistrate’s decision; his exercise of appellate powers under section 78 of the Civil Procedure Act was proper
The Court held that the 1st respondent had a right of appeal, was an interested and necessary party, had been intentionally excluded and condemned unheard, and that the only remedy available was setting aside the decision and remitting the case for hearing de novo. The High Court’s power under section 78 of the Civil Procedure Act, in accord with Article 165(3) of the Constitution, includes power to remand a case and order a new trial.
Doctrine of lis pendens
The Court declined to make any substantive determination on lis pendens, deferring it to the fresh trial
The Court observed that the issue might arise in the fresh trial of the parties’ claims and considered it inappropriate to express substantive views lest it pre-empt or embarrass the trial court.
De novo trial as a remedy
A de novo trial is ordered in exceptional cases where indispensable to avert failure of justice, balancing the right to fair hearing against expeditious disposal
Relying on the Supreme Court of India in Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi) and the Environment and Land Court on Appeal in Ohando v Akama, the Court endorsed the ordering of a de novo hearing as a remedy affording the right to fair hearing under Article 50, to be balanced against expeditious disposal under Article 159(2)(b) and Sections 1A and 1B of the Civil Procedure Act.
Legal principles established
#- A person with an identifiable stake in the subject matter who was unfairly excluded from proceedings that adversely affect him may be joined as an interested party and seek setting aside of the judgment, even after judgment and decree
- While joinder ordinarily applies to pending proceedings, an appellate court may set aside a judgment and remit the matter for hearing de novo to allow the excluded interested party to be heard
- Decisions reached in breach of the rules of natural justice are liable to be set aside as of right
- Under section 78 of the Civil Procedure Act, the High Court on appeal has power to confirm, reverse or vary decisions of lower courts, remand a case, order a new trial, and make orders necessary for the proper administration of justice
Court orders
#- 1.The appellant’s appeal is dismissed in its entirety with costs to the 1st respondent
- 2.The judgment and decree of the High Court of Kenya at Mombasa (J. N. Onyiego, J.) delivered on 23rd December 2021 is upheld
- On appeal from
- High Court of Kenya at Mombasa
- Family Appeal No. E011 of 2021
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal on matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ongati & 3 others v Nyambarora & another (Environment and Land Case 84 of 2016) [2025] KEELC 5397 (KLR)[2025] KEELC 5397 (KLR)16 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Millicent Zighe Mwachala v Jeremiah Mghanga Msafari & 3 others", Case Analysis (2025). Court of Appeal at Malindi (appeal against Family Appeal No. E011 of 2021, High Court at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1142/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.