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ELCDismissedKitale ELC No. 64 of 2011 (Application dated 29/4/2019)· [2019] KEELC 756 (KLR)

Boaz Kipchumba Kaino v G.H. Tanna & Sons Ltd ; Abdu Mukhwana & 3 others (Interested Parties) [2019] KEELC 756 (KLR)

Environment and Land Court
14 November 2019
MNMwangi Njoroge
2,969 words in judgment
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The bottom line

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A Kenyan land court refused to add new parties to a concluded case, ruling that joining someone after judgment is only allowed in exceptional, well-supported situations.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J.) determines an application dated 29/4/2019 in which the applicants - Abdu Mukwana, Fredrick Sambula, Wanjala Wesela and Robert Makona - sought to be enjoined as plaintiffs or interested parties in a suit in which judgment had already been delivered. They relied on letters of allotment over the suit parcels, asserted occupation and development since 1994, and claimed they learned of the 2017 judgment only in 2018 through a lower court matter, contending that cancellation of titles without a hearing violated their rights. The respondent, Paresh Gordhandas Tanna, director of the defendant, opposed the application, arguing that the court was functus officio after judgment, that the applicants held mere letters of allotment (offers never consummated) as against his titles, that no appeal lay against the judgment, and that the applicants had alternative active proceedings in Kitale ELC No. 75 of 2018 and Kitale ELC Petition No. 4 of 2019. The court framed two issues: whether the applicants could be enjoined after judgment, and what orders should issue. Applying Order 1 rule 10(2) and the J M K v M W M, Lilian Wairimu Ngatho and Carol Silcock authorities, the court held that joinder is only possible in pending proceedings, and post-judgment joinder is exceptional, requiring concrete action such as a pending review or setting-aside application. Because the applicants had only an intention to seek review, the court declined to act on speculation, found the application devoid of merit, struck it out, and awarded costs to the respondent.

Key legal issues

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Whether a party may be enjoined to a suit after judgment has been delivered

Holding

Joinder after judgment is generally not permissible; it may be allowed only in exceptional circumstances where concrete steps, such as a pending review or setting-aside application, show the direction the matter would take after joinder.

Reasoning

Order 1 rule 10(2) permits joinder 'at any stage of the proceedings', but proceedings end with entry of judgment. Once judgment is delivered the court becomes functus officio and there is no suit in which a party can be added. The exceptional cases (JMK v MWM; Carol Silcock) involved either a pending setting-aside application or a substantive application affecting the intended party's interests. Here the applicants merely intended to seek review, which is speculation; courts should not act in vain.

p. 3

Legal principles established

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  • Joinder of a party under Order 1 rule 10(2) can only be made in pending proceedings; a party cannot be joined after a suit has been concluded, save in exceptional circumstances supported by concrete action.

Court orders

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  1. 1.The application dated 29/4/2019 is struck out
  2. 2.Costs of the application awarded to the respondent
Jurisdiction invoked
Sections 1A and 1B of the Civil Procedure Act and Order 1 Rules 8(1) and 3, 12 and 14 of the Civil Procedure Rules, 2010

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, "Boaz Kipchumba Kaino v G.H. Tanna & Sons Ltd ; Abdu Mukhwana & 3 others (Interested Parties) [2019] KEELC 756 (KLR)", Case Analysis (2019). Kitale ELC No. 64 of 2011 (Application dated 29/4/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/756/eng@2019-11-14

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