Pasha Enterprises Limited v Kenya Farmers Association Ltd & another; County Govt. of Machakos (Intended Interested Party) [2019] KEELC 2082 (KLR)
The bottom line
#The Machakos Environment and Land Court dismissed attempts to reopen a land judgment, confirming that parties who skip or delay must use review or appeal, not repeat applications.
What this practically means
#Executive summary
#Key legal issues
#Res judicata of interlocutory applications
The Defendants' application was res judicata because it raised the same grounds considered in the court's ruling of 17th July, 2018 declining the adjournment
The court had ruled on 17th July, 2018 declining the oral adjournment application and proceeded to hear the suit ex parte. The Defendants neither sought review nor appealed, but instead filed a Notice of Motion raising the same grounds. The court held it could not revisit the propriety of its own ruling in that manner, and noted the Defendants were not ready to proceed even if adjourned since they had not filed witness statements.
Right to be heard versus finality of concurrent-jurisdiction decisions
The Intended Interested Party's application to set aside the judgment failed because the ownership issue was decided in Nakuru HCCC No. 560 of 1998, which remained unreversed
The Plaintiff's suit was for vacant possession, not ownership. Ownership was determined by the High Court in Nakuru HCCC No. 560 of 1998 through a Decree and Vesting Order never set aside or reviewed. The Intended Interested Party's proprietary rights could not be ventilated in this suit unless and until those orders were varied. Further, no joinder application was made before the Plaintiff testified.
Joinder of the County Government
Failure to join the County Government could not be raised at the setting-aside stage because the Defendants themselves pleaded non-joinder but never applied for joinder
The Defendants pleaded non-joinder of the Machakos County Government in their Defence, placing them under an obligation to seek joinder or notify the County Government. They did neither. Having taken the position that the land belonged to the County Government, they could not complain of non-joinder after judgment when it was not in the Plaintiff's interest to join a party against whom it had no cause of action.
Legal principles established
#- An application raising grounds that were raised and considered in a ruling on adjournment is res judicata; the proper remedy is review or appeal
- A party who alleges the suit property belongs to it must seek joinder before the hearing concludes; ownership decided by a court of concurrent jurisdiction cannot be re-litigated unless the decree is set aside
Court orders
#- 1.The Notice of Motion dated 27th July, 2018 is dismissed with costs
- 2.The Notice of Motion dated 5th March, 2019 is dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pasha Enterprises Limited v Kenya Farmers Association Ltd & another; County Govt. of Machakos (Intended Interested Party) [2019] KEELC 2082 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2082/eng@2019-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.