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ELCDismissedELC No. 103 of 2000 (Embu)· [2019] KEELC 1559 (KLR)

Joseph Gatia Wambugu v Muriuki Wambugu; Peter Njiru Moses & 5 others (Interested Parties) ( [2019] KEELC 1559 (KLR)

Environment and Land Court
20 September 2019
ECE.C. Cherono
1,751 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed attempts to join a land case after judgment, ruling that titles bought during the lawsuit were invalid.

What this practically means

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Executive summary

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The Applicants, interested parties who had purchased portions of land parcel NGARIAMA/THIRIKWA/413 from the defendant during the pendency of the suit, moved the Court by Notice of Motion dated 4th November 2015 seeking to be enjoined as parties, to restrain the respondents from interfering with their parcels, and to review, vary or set aside the judgment and decree issued on 5th March 2015 which cancelled sub-divisions of the original parcel NGARIAMA/THIRIKWA/413 and restored it to the plaintiff. The 2nd Applicant deponed that he bought land in October 2014 after due diligence, obtained statutory consents and titles, took possession and developed the land, only to discover that the 2015 judgment had cancelled sub-divisions on which his and the other Applicants' titles were superimposed, creating parcels with multiple titles. The plaintiff opposed, contending the application was an abuse of process, that the Applicants bought with knowledge of the suit, that the Court had become functus officio, and that the unappealed decree cancelled all resultant titles. The Court applied Benjoh Amalgamated Limited v Kenya Commercial Bank, holding that jurisdiction to re-open a decided matter is residual, exercisable only for fraud, bias or other injustice and with circumspection; the Applicants established no such ground, and the finality principle prevailed. Applying Lilian Wairimu Ngatho v Moki Savings Co-operative Society, the Court further held that joinder under Order 1 Rule 10(2) is unavailable after judgment. The Applicants' resultant titles were declared a nullity. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Jurisdiction to review a judgment after delivery

Holding

The power to review is a statutory creation and the Court retains only a residual jurisdiction to re-open a decided matter in cases of fraud, bias or other injustice, exercised cautiously. The Applicants demonstrated none of these grounds, so the finality principle prevailed.

Reasoning

Relying on Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited, the Court held that review power must be conferred by law specifically or by necessary implication. Even the residual jurisdiction to correct fraud, bias or injustice must be invoked with circumspection and only where it promotes public interest and confidence in the justice system. The Applicants failed to plead any such ground, and the decree of 5th March 2015 had cancelled all sub-divisions including the resultant parcels and titles.

p. 3
02

Joinder of a party after judgment

Holding

Joinder under Order 1 Rule 10(2) is only possible while proceedings are pending; once the Court has made its findings, joinder serves no purpose.

Reasoning

Adopting Lilian Wairimu Ngatho & another v Moki Savings Co-operative Society Ltd & another, the Court noted that 'proceedings' run from commencement to the entry of judgment, so a party may be joined at any stage of the pendency of the suit but not after its conclusion. The purpose of joinder is to enable the Court effectually and completely adjudicate on all questions in a suit, which is impossible where judgment has already been delivered on all issues.

p. 3

Legal principles established

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  • A court has only residual jurisdiction to re-open a decided matter, exercisable only in cases of fraud, bias or other injustice and invoked with circumspection
  • A party may be joined to a suit under Order 1 Rule 10(2) only during the pendency of proceedings, not after judgment has been entered

Court orders

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  1. 1.The Notice of Motion dated 4th November 2015 was dismissed
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10 (1) & (2)
  • Civil Procedure RulesOrder 40 Rule 1 (1)
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 47 Rule 8

Cases cited (2)

  • Benjoh Amalgamated Limited & another Vs Kenya Commercial Bank Limited
    (2014) e K.L.R
  • Lilian Wairimu Ngatho & another Vs Moki Savings Co-operative Society Ltd & another
    (2014) e K.L.R
Jurisdiction invoked
Order 1 Rule 10 (1) & (2), Order 40 Rule 1 (1), Order 45 Rule 1 and Order 47 Rule 8 of the Civil Procedure Rules

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, "Joseph Gatia Wambugu v Muriuki Wambugu; Peter Njiru Moses & 5 others (Interested Parties) ( [2019] KEELC 1559 (KLR)", Case Analysis (2019). ELC No. 103 of 2000 (Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1559/eng@2019-09-20

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