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ELCDismissedNot stated in the extract (filed in the High Court, Mombasa, in 2001)· [2015] KEELC 196 (KLR)

William Ole Nabaala v Attorney Genera & 9 others [2015] KEELC 196 (KLR)

High Court of Kenya (Environment and Land Division), Malindi
9 October 2015
3,875 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Malindi refused to let four land buyers join a 14-year-old case after judgment, because they bought the property while the lawsuit was ongoing.

What this practically means

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Executive summary

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The four proposed Defendants applied to be joined as defendants, for a stay of further proceedings, and for the judgment of 6th March 2015 to be set aside or varied so the suit could be reheard in their presence. The suit, filed in the High Court at Mombasa in 2001, concerned plot 592 Section III/MN and ended with a judgment allowing the Plaintiff's claim, declaring the 3rd Defendant's subdivision null and void and nullifying titles arising from it. Each Applicant claimed an interest derived pendente lite: the 1st from the 5th Defendant, the 2nd a house 'without land' from Patrick Charo Kote, the 3rd a purchase from the 3rd Defendant in 2013, and the 4th a transfer from his mother, the 4th Defendant, effected in 2009. The Plaintiff opposed, invoking functus officio, lis pendens and the fact that the Applicants' vendors participated in the suit. The court held that joinder is only possible before trial under Order 1 Rules 10 and 14, but that the court's inherent jurisdiction can set aside a judgment where a necessary party was omitted and deprived of a hearing. However, none of the Applicants was a necessary party at inception: all acquired interests during the pendency of the suit and are bound by the doctrine of lis pendens as explained in Belleny v Sabine and the court's own decision in Carol Silcock. Their remedies lie against their vendors. The application was dismissed with costs on 9th October 2015.

Key legal issues

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01

Joinder of parties after judgment

Holding

A party can only be enjoined before trial; after judgment, only a necessary party whose right to be heard was infringed may be admitted under the court's inherent powers, with the judgment set aside.

Reasoning

Order 1 Rule 14 read with Order 1 Rule 10 confines joinder to before trial. However, where a plaintiff fails to sue a party likely to be affected, the court's inherent jurisdiction permits setting aside judgment and a de novo hearing. This exception applies only where the omitted party was a necessary party at inception, which the Applicants failed to establish.

p. 4
02

Doctrine of lis pendens against the Applicants

Holding

All four Applicants acquired their interests pendente lite and are bound by the judgment; they must pursue remedies against their vendors, not the Plaintiff.

Reasoning

Each Applicant's transaction postdated the 2001 filing of the suit: the 1st Applicant bought from the 5th Defendant, the 2nd Applicant's house agreement was dated 2004 and his 2011 agreement with the 3rd Defendant, the 3rd Applicant purchased in 2013, and the 4th Applicant's transfer (2009) and charge (2015) were during the suit. Purchasers pendente lite are bound by Belleny v Sabine and Section 52 of the Transfer of Property Act principles.

p. 7
03

Standing of Applicants to raise defects in the proceedings

Holding

Non-parties cannot raise the failure to join the deceased 2nd Defendant's legal representatives or the closure of the 4th and 5th Defendants' cases; only those parties or their administrators may do so.

Reasoning

The 2nd Defendant died in 2007 and his estate's administrators never sought joinder. The Applicants, being strangers to those interests at the time of suit, lack the standing to complain of procedural irregularities affecting other parties.

p. 7

Legal principles established

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  • Where a necessary party was not sued and his right to be heard is infringed, the court under its inherent powers may set aside its judgment and begin the matter de novo
  • The doctrine of lis pendens binds persons who derive title under litigating parties pending a suit, whether or not they had notice

Court orders

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  1. 1.Dismissal of the Application dated 18th March 2015 with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B; Section 3A
  • Civil Procedure RulesOrder 1 Rule 10; Order 1 Rule 14
  • Transfer of Property Act (repealed)Section 52

Cases cited (4)

  • Herman Singh V Mistri
    (1971) EA 122
  • Motokov V Auto Garage
    (1970) EA 249
  • Carol Silcock Vs Kassim Shariff Mohamed
    Malindi ELC No. 55 of 2011
  • Belleny Vs Sabine
    (1857) I Dej 566, 584
Jurisdiction invoked
Inherent jurisdiction of the court and sections 3A, 1A and 1B of the Civil Procedure Act; Order 1 Rules 10 and 14 of the Civil Procedure Rules

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, "William Ole Nabaala v Attorney Genera & 9 others [2015] KEELC 196 (KLR)", Case Analysis (2015). Not stated in the extract (filed in the High Court, Mombasa, in 2001). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/196/eng@2015-10-09

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