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ELCDismissedKisumu Environment and Land Court Case (suit over plot Kisumu/Municipality/Block 8/297), Notice of Motion dated 25th June 2018· [2020] KEELC 213 (KLR)

Mayfair Holdings Ltd v Municipal Council of Kisumu; Pauline Mauwa Akwacha (Interested Party/Applicant) [2020] KEELC 213 (KLR)

Environment and Land Court
10 December 2020
AOANTONY OMBWAYO
2,331 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 in Kisumu confirmed that you cannot join a case after judgment has been delivered.

What this practically means

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Executive summary

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The Applicant, a self-described tenant of one Shakeel Shabir on plot Kisumu/Municipality/Block 8/297, filed a Notice of Motion dated 25th June 2018 seeking joinder to a concluded land suit, and further seeking that the court recall, review and set aside the judgment delivered on 30th May 2018, declare it a nullity, and order the case heard afresh. She argued that her interests in the suit parcel were not considered, that the Plaintiff, who had earlier sued her in Kisumu High Court Case No. 100 of 2011, deliberately failed to join her, and that the judgment violated her rights to a fair hearing under Article 50. The Defendant supported the application, alleging the Plaintiff had not made full disclosure. The Plaintiff opposed, arguing the suit was concluded, the court was functus officio, the Applicant was indolent, and the application was an abuse of process. Ombwayo J framed a single issue: whether the Applicant could be joined after the conclusion of proceedings. Relying on J M K v M W M, Rubina Ahmed v Guardian Bank Ltd and Lilian Wairimu Ngatho, the court held that joinder under Order 1 Rule 10(2) is only available in pending proceedings, not after judgment. The court further held that the Applicant was not a necessary party, her claim being founded on a tenancy with a third party and involving a distinct cause of action. Consequently, no grounds existed for review under Order 45 Rule 1. The application was dismissed with costs on 10th December 2020.

Key legal issues

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01

Joinder after conclusion of proceedings

Holding

A party cannot be joined after judgment has been delivered; joinder under Order 1 Rule 10(2) applies only to pending proceedings

Reasoning

The court relied on Court of Appeal authority in J M K v M W M and Rubina Ahmed v Guardian Bank Ltd, and on Nyamweya J's holding in Lilian Wairimu Ngatho, that 'proceedings' end with the entry of judgment. Since judgment was delivered on 30th May 2018, there was no pending suit to which the Applicant could be joined.

p. 3
02

Whether the Applicant is a necessary party

Holding

The Applicant was not a necessary party as her claim was as tenant of a third party and involved a separate cause of action

Reasoning

The Applicant's claim rested on a lease with Shakeel Shabir, not with the Defendant. Her suit, Kisumu High Court Case No. 100 of 2011, involved a distinctly separate cause of action from the Plaintiff's claim in this suit, so her presence was not required for complete adjudication.

p. 3
03

Review under Order 45 Rule 1

Holding

No sufficient grounds existed for review or setting aside the judgment

Reasoning

Review requires an error or omission on the face of the record or discovery of new and important matter. Having failed to establish herself as a necessary party, the Applicant could not demonstrate any ground warranting review or setting aside of the judgment.

p. 3

Legal principles established

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  • An application for joinder of a party under Order 1 Rule 10(2) can only be made in pending proceedings, not after judgment
  • A party may be joined only if its presence is necessary to enable the court effectually and completely adjudicate upon all questions in the suit

Court orders

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  1. 1.The Applicant's Notice of Motion dated 25th June 2018 is dismissed
  2. 2.The Applicant is not joined to the suit
  3. 3.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 1 Rule 3
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure ActSection 80
  • Constitution of KenyaArticles 48, 50(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013definition of interested party

Cases cited (10)

  • Mwihoko Housing Company Limited v Equity Building Society
    [2007] 2 KLR 171
  • Uhuru Highway Development Limited v Central Bank of Kenya & 2 others
    [1995] eKLR
  • Andy Forwarders Service Limited & another v Price Waterhouse Coopers Limited & another
    [2012] eKLR
  • Central Kenya Ltd v Trust Bank Ltd & 5 others
    [2000] eKLR
  • Apollo Mboya & another v Cabinet Secretary of the National Treasury & 6 others
    [2019] eKLR
  • Meme v Republic
    [2004] KLR 637
  • Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others
    [2013] eKLR
  • J M K vs M W M & Another
    [2015] eKLR
  • Rubina Ahmed & 3 others v Guardian Bank Ltd (Sued in its capacity as a successor in Title to First National Finance Bank Ltd)
    [2019] eKLR
  • Lilian Wairimu Ngatho & another v Moki Savings Co-Operative Society Limited & another
    [2014] eKLR
Jurisdiction invoked
Order 1 Rule 10(2) and Order 45 Rule 1 of the Civil Procedure Rules; Articles 48, 50 of the Constitution invoked by the Applicant

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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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, "Mayfair Holdings Ltd v Municipal Council of Kisumu; Pauline Mauwa Akwacha (Interested Party/Applicant) [2020] KEELC 213 (KLR)", Case Analysis (2020). Kisumu Environment and Land Court Case (suit over plot Kisumu/Municipality/Block 8/297), Notice of Motion dated 25th June 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/213/eng@2020-12-10

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