Benjamin Ekisa Emukule v Faustine Okwara Itangasa & another;Levy Sixtus Emojong Emongor(Applicant) [2019] KEELC 1823 (KLR)

Environment and Land Court

10 September 2019

AKA. K. Kaniaru

1,785 words in judgment

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The bottom line

If you missed a land case that hurt your interests, you generally can't join it after it ends—file your own fresh lawsuit instead.

What this practically means

Executive summary

The Applicant, Levy Sixtus Emojong Emongor, who was not a party to Busia Environment and Land Court suit over parcel South Teso/Amukura/3226, filed a Notice of Motion dated 19/2/2018 seeking leave to join the concluded suit as an interested party, an interim injunction restraining the Plaintiff from interfering with the land, setting aside of the judgment delivered on 29/11/2017, and a fresh hearing with him as a party. The suit had been brought by originating summons by the Plaintiff against the two Defendants as an adverse possession claim, decided ex parte against the Defendants, with the land transferred to the Plaintiff. The Plaintiff opposed, stating judgment was delivered and fully executed and that the Applicant should file a separate suit; the 1st Defendant supported the Applicant as the registered owner. The court, A. K. Kaniaru J, noted the Applicant's submissions never addressed joinder but argued the merits as if on appeal, and that an interested party's scope of action is limited, citing the Supreme Court's Muruatetu and Methodist Church of Kenya decisions. Interim injunctive relief was untenable in a concluded suit with no pending action. The application was dismissed with costs to the Plaintiff, with advice that the Applicant pursue his claim in a separate substantive suit.

Key legal issues

Joinder of an interested party in a concluded suit

Holding

Joinder was refused; the Applicant sought to join at a very late stage in a concluded and executed matter and did not even properly submit on joinder

Reasoning

The court held that the suit belongs to the Plaintiff, who chose whom to sue, and that the Applicant was not in the picture when the suit was filed. The Applicant's submissions ignored the joinder question and argued the substance of the suit as if on appeal. An interested party's role is limited and cannot be used to control proceedings, so joinder in a concluded suit was inappropriate.

p. 2

Limits on the capacity of an interested party

Holding

An interested party cannot raise fresh issues, counter-claims or preliminary objections and cannot seek substantive control of proceedings

Reasoning

Relying on the Supreme Court's decisions in Muruatetu and Methodist Church of Kenya, the court held that the overriding interest in any matter is that of the primary parties, and an interested party may not frame fresh issues or introduce new ones. The Applicant's prayers showed he wanted substantial control of the proceedings while not yet a party.

p. 2

Interim injunction in a concluded suit

Holding

Interim injunctive relief presupposes a pending suit; none existed here

Reasoning

The court reasoned that the basic principles for granting an injunction require an existing suit in which a primafacie case can be considered. The Applicant had filed no suit, so the injunction sought had nothing to be interim to.

p. 3

Legal principles established

An interested party has a limited scope of action and cannot take substantive control of proceedings between the primary parties
A person adversely affected by a concluded judgment in which he was not a party should file a separate substantive suit rather than seek joinder of a concluded suit

Court orders

1.The application dated 19/2/2018 is dismissed with costs to the Plaintiff

Authorities

Legislation

Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 3B
Civil Procedure RulesOrder 40 Rules 1, 2, 3
Civil Procedure RulesOrder 42 Rules 1, 2, 3
Civil Procedure RulesOrder 45 Rules 1(1)(a)(b), 2

Cases cited (2)

Methodist Church of Kenya Vs Mohamed Fugicha & 3 others
[2019] eKLR
Kariuki Muruatetu & Another Vs Republic & 5 others
Sup. Ct. Pet 15 and 16 of 2015 (consolidated); [2016] eKLR

Jurisdiction invoked: Sections 1A, 1B, 3A, 3B of the Civil Procedure Act (Cap 21) and Order 40, 42 and 45 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Benjamin Ekisa Emukule v Faustine Okwara Itangasa & another;Levy Sixtus Emojong Emongor(Applicant) [2019] KEELC 1823 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1823/eng@2019-09-10

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