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ELCDismissedNot stated in the judgment· [2016] KEELC 57 (KLR)

Lazarus Kerich v Kisorio Arap Barno & 4 others [2016] KEELC 57 (KLR)

Environment and Land Court (High Court of Kenya), Eldoret
4 November 2016
AOANTONY OMBWAYO
934 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused four men permission to join a land case and halt its outcome, ruling their names were already on the official farm membership list.

What this practically means

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Executive summary

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Four applicants - Robert Kaptich, Peter Kosgey, Peter Baywo and William Sugut - applied to be enjoined as interested parties and for a stay of enforcement of the court order of 18.3.2016, claiming to be co-owners and original shareholders of the suit land belonging to Asururiet Farm Ltd, whose outcome would affect them adversely. The defendant opposed through grounds of objection, arguing among other things that the applicants had no locus standi, that the suit had concluded with final orders, and that the court was functus officio and could not vary the judgment under Order 10. Paul Serem, the Farm Committee Secretary, deponed that the judgment of 18th March 2016 was based on an up-to-date list of 282 plots which expressly named each applicant with their acreage, including Robert Kaptich at No. 11, Peter Baywo at No. 13, Peter Kosgei's interest at No. 18 and William Sugut at No. 253; the survey on the ground was simply actualising the court's order, and the applicants' annexed documents were superseded. Counsel for the intended interested parties (Mr. Omusundi) urged that the applicants were shareholders who should participate in the survey, while counsel for the defendant, plaintiff and Committee opposed. The court found the application was intended only to stall enforcement of the 18.3.2016 order, since the applicants did not seek its setting aside; the applicants were already on the list of members and their interests were well considered, and it was unclear what they objected to. Holding the application contrary to the overriding objective of the Civil Procedure Act and an abuse of the court's process, the judge dismissed it with costs on 4th November 2016.

Key legal issues

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01

Whether the applicants qualified as interested parties with locus standi

Holding

They were refused enjoinder because their interests were already represented in the list of members forming the basis of the judgment; they lacked any identifiable grievance.

Reasoning

The court found that each applicant is named in the 282-plot list co-signed by one of the applicants, so their interests were catered for and they participated in the process leading to judgment. The applicants did not seek setting aside of the order of 18.3.2016, so a stay would leave nothing for determination and merely create a stalemate.

p. 2
02

Abuse of process and the overriding objective

Holding

The application, intended only to stall the survey actualising the court order, was contrary to the overriding objective and an abuse of the court's process.

Reasoning

The court held the application could only succeed in delaying enforcement of a final order; since the applicants did not seek setting aside, allowing it would render the concluded judgment nugatory. It therefore fell outside the just, expeditious and proportionate resolution of disputes mandated by the Civil Procedure Act and was dismissed with costs.

p. 2

Legal principles established

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  • Enjoinment of a party under Order 1 Rule 10(2) must be consistent with the overriding objective of just, expeditious, proportionate and affordable resolution of disputes; an application contrary to that objective and amounting to abuse of process will be dismissed.

Court orders

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  1. 1.The application to be enjoined as interested parties and for stay of enforcement of the order of 18.3.2016 is dismissed
  2. 2.Costs of the application awarded against the applicants

Authorities

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Legislation

  • Civil Procedure ActOverriding objective
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 10 (referred to by defendant regarding functus officio)
Jurisdiction invoked
Inherent jurisdiction under the Civil Procedure Act, including Order 1 Rule 10(2) (enlargement of the suit to enjoin interested parties)

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, "Lazarus Kerich v Kisorio Arap Barno & 4 others [2016] KEELC 57 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/57/eng@2016-11-04

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