Elisha Kare Busienei & 3 others v Japhet Kipyego Chepkwony & 16 others [2016] KEELC 213 (KLR)
The bottom line
#Land buyers who stayed out of a court case for nearly 20 years couldn't join it after judgment, so they lost their plots' protection.
What this practically means
#Executive summary
#Key legal issues
#Availability of review under Section 80 of the Civil Procedure Act where an appeal is pending
The applicants cannot invoke Section 80 because an appeal against the decree has already been preferred by the first defendant; review lies only where no appeal has been preferred.
The court reasoned that Section 80 permits review only of decrees or orders from which no appeal has been preferred. Since the first defendant had already appealed against the decree, entertaining review would risk conflicting decisions. The mechanism exists to provide an orderly way of disposing of matters and to avoid contradictory outcomes between the trial court and the appellate court.
Whether non-parties (aggrieved persons) qualify under Order 45 Rule 1(2)
Order 45 Rule 1(2) applies to parties, not to strangers to the suit; the applicants were not parties and in any event their ground (retention of their plots) is common to the first defendant's appeal ground, excluding them from review.
The court adopted Black's Law Dictionary's definition of a party as one who takes part in a transaction and held the applicants were never parties to the suit under appeal. Even assuming otherwise, the remedy sought on appeal (retention of the suit property) is the same relief the applicants seek, and Order 45 Rule 1(2) expressly excludes applicants whose ground is common to the appellant's.
Whether the judgment should be reviewed to enjoin the applicants
The application was dismissed; the applicants knew of the pending suit since 1998 and should have sought enjoinment before judgment.
The court held the applicants were aware of the pending litigation yet purchased their portions and only moved after judgment was delivered. The Ngororo v Ndutha decision was distinguishable because there was no appeal pending in that case, unlike here where an appeal is before the Court of Appeal.
Legal principles established
#- Review under Section 80 of the Civil Procedure Act can only be entertained where no appeal has been preferred against the decree
- A non-party to a suit cannot rely on Order 45 Rule 1(2), which is confined to parties, and where the ground of the pending appeal is common to the applicant, review is excluded
- A person aware of pending litigation must seek to be enjoined before judgment rather than await the outcome
Court orders
#- 1.The applicants' application is dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1(2) of the Civil Procedure Rules (invoked by the applicants for review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elisha Kare Busienei & 3 others v Japhet Kipyego Chepkwony & 16 others [2016] KEELC 213 (KLR)", Case Analysis (2016). Not stated in the judgment (notice of motion dated 17/8/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/213/eng@2016-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.