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ELCAllowedAppeal from Lodwar E&L Case No. 5 of 2018· [2020] KEELC 144 (KLR)

Ann Akuyen v Lokadobong Elim & another [2020] KEELC 144 (KLR)

Environment and Land Court
29 October 2020
MNMwangi Njoroge
2,913 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who was never told about a court case won the right to join it and be heard after the original judgment was set aside.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kitale against a ruling by Hon. C.M. Wekesa, Senior Resident Magistrate, delivered on 22 October 2019 in Lodwar E&L Case No. 5 of 2018, dismissing a notice of motion dated 5 August 2019. The motion sought stay of execution, review and setting aside of the judgment of 30 April 2019, joinder of the applicant as 2nd defendant, amendment of the plaint, and a temporary injunction over the suit land. The applicant claimed she had purchased the suit land in 2015, taken possession, and was never made aware of the proceedings. Only the appellant filed written submissions on the appeal. Mwangi Njoroge J identified the sole issue as whether the trial court erred in dismissing the application and thereby condemned the appellant unheard. The court reviewed Section 80 of the Civil Procedure Act and Order 45, noting the appellant was not a party to the proceedings or any intended appeal, so review was her only remedy. Although Nyamweya J in Lilian Wairimu Ngatho had held post-judgment joinder impermissible, the court followed later authority (JMK v MWM; Boaz Kipchumba Kaino) permitting post-judgment joinder where review and a fresh hearing are sought. Applying the cardinal principle that no person should be condemned unheard, the court held the magistrate failed properly to exercise her discretion. The appeal was allowed: the trial order of 22/10/2019 was set aside, the review application was allowed, the judgment, proceedings and consequential orders were set aside, the appellant was to be enjoined as 2nd defendant with 14 days to file her defence, the plaint was to be amended, and each party bore their own costs.

Key legal issues

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01

Whether the trial magistrate properly exercised her discretion in dismissing the review/joinder application

Holding

The trial magistrate failed to properly exercise her discretion under Section 80 and Order 45, especially as the appellant had no remedy other than review and setting aside to pave the way for her to be heard

Reasoning

The appellant was neither a party to the suit nor to any intended appeal. Her application sought review, joinder as 2nd defendant, amendment of the plaint and a temporary injunction, with a draft defence and counterclaim attached. Since review was her only avenue, dismissing it denied her a hearing. The magistrate ought to have assessed whether dismissal would prejudice the appellant by denying her the opportunity to be heard, and whether the suit had effectually adjudicated all issues. Denial of a hearing was the necessary sequel to the dismissal.

p. 4
02

Whether joinder of a party is permissible post-judgment under Order 1 rule 10(2)

Holding

While earlier authority (Lilian Wairimu Ngatho) held joinder is only possible during pendency of a suit, later authority permits post-judgment joinder where review/setting aside is sought

Reasoning

The court reviewed Order 1 rule 10(2), which allows joinder at any stage of the proceedings. Nyamweya J in Lilian Wairimu Ngatho held that proceedings end upon entry of judgment so post-judgment joinder is not allowed. However, in JMK v MWM, relying on Tang Gas Distributors, a party can be added even after judgment where damages are yet to be assessed and even at the appellate stage. The Boaz Kipchumba Kaino decision permits post-judgment joinder where review or setting aside of the judgment and a fresh hearing is sought - which is exactly what the appellant sought here.

p. 3

Legal principles established

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  • No person should be condemned unheard; the right to a fair hearing is vested by Article 50 and cannot be limited under Article 25(c)
  • Post-judgment joinder of parties is possible where the application seeks review or setting aside of the judgment and a fresh hearing
  • A party who was neither a party to the proceedings nor to the appeal can seek review and cannot appeal the same decree

Court orders

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  1. 1.The trial Magistrate's Order made on 22/10/2019 dismissing the appellant's application dated 5/8/2019 is set aside
  2. 2.The application for review dated 5/8/2019 is allowed
  3. 3.The judgment dated 30/4/2019, the proceedings and all consequential orders are set aside
  4. 4.The appellant is enjoined as 2nd defendant in Lodwar SPMCC No 5 of 2018 and shall file a memorandum of appearance and statement of defence and effect service within 14 days from the date of the judgment
  5. 5.The 1st respondent shall amend his plaint in Lodwar SPMCC No 5 of 2018 to include the appellant as the 2nd defendant and Akudunyang Esinyen as the 2nd plaintiff
  6. 6.Each party shall bear their own costs of this appeal
On appeal from
Senior Resident Magistrate's Court, Lodwar (Hon. C.M. Wekesa, SRM)
Lodwar E&L Case No. 5 of 2018 (Ruling of 22/10/2019)
Jurisdiction invoked
First appellate jurisdiction over the ruling of the Senior Resident Magistrate's Court (Environment and Land jurisdiction)

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, "Ann Akuyen v Lokadobong Elim & another [2020] KEELC 144 (KLR)", Case Analysis (2020). Appeal from Lodwar E&L Case No. 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/144/eng@2020-10-29

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