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ELCDismissedNotice of Motion dated 20th December 2018· [2020] KEELC 394 (KLR)

Muthondu Nduti v Wanyoike Kamau & 8 others [2020] KEELC 394 (KLR)

Environment and Land Court
5 November 2020
EOE. O. Obaga
1,621 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled you cannot join a party or seek review after judgment is delivered, and delays will get your application dismissed.

What this practically means

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Executive summary

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The Applicants, administratrixes of the estate of Kamau Nduti (deceased), sought by Notice of Motion dated 20th December 2018 to be enjoined as Defendants in a concluded land suit, to have the ruling of Mutungi J delivered on 4th July 2013 (which reviewed a decree following Nambuye J's judgment of 30th July 1992) set aside or varied to reflect that parcel Ngenda/Kahugu-ini/1274 is held in trust for the estate, and for an injunction restraining dealings with the parcel pending determination. The background was a 1992 judgment declaring the Plaintiff held the original parcel partly in trust for the deceased, with the property later subdivided and 20 acres directed to the Defendants upon review in 2013. The Respondents opposed, contending the Applicants were strangers, the suit was concluded in 1992, there was inordinate delay, the claim was statute barred, and Order 45 barred a second review. Obaga J framed three issues: joinder, review, and injunction. Relying on Lilian Wairimu Ngatho v Moki Savings, the court held that proceedings end at entry of judgment, so the Applicants could not be joined after the 1992 judgment. On review, the court found no error apparent on the face of the 1992 judgment or the 2013 ruling, noting that an alleged erroneous interpretation is a ground of appeal, not review, and that the application was brought after inordinate delay and offended the bar on second reviews. The injunction question was not considered as superfluous. The application was dismissed with each party bearing their own costs, the parties being related. The Applicants were left at liberty to pursue their claim in the pending succession cause or a fresh trust claim.

Key legal issues

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01

Joinder after judgment

Holding

Joinder refused because judgment had been delivered in 1992, concluding the proceedings

Reasoning

The court relied on Order 1 Rule 10(2) allowing joinder 'at any stage of the proceedings', but adopting Justice Nyamweya's reasoning, 'proceedings' end at entry of judgment. Since judgment was delivered on 30th July 1992, the Applicants could not be enjoined thereafter.

p. 3
02

Review of the 1992 judgment and 2013 ruling

Holding

Review refused; no error apparent on the face of the record, and the application suffered inordinate delay

Reasoning

The court found no error apparent on the face of the 1992 judgment; a perceived erroneous construction is a ground of appeal, not review. The 2013 ruling by Mutungi J merely restored to the Defendants what the judgment had given them after the Plaintiff's subdivision. The application was also barred by inordinate delay and the rule against a second review.

p. 3
03

Injunction

Holding

Not considered; superfluous once joinder and review were refused

Reasoning

The injunction was premised on the joinder and review succeeding. Both having failed, the court declined to determine the injunction issue, holding it would be superfluous to do so.

p. 3

Legal principles established

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  • A party cannot be joined to proceedings after judgment has been delivered, as 'proceedings' end with entry of judgment
  • An application for review must be brought without unreasonable delay

Court orders

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  1. 1.The Applicants' Notice of Motion dated 20th December 2018 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 45

Cases cited (1)

  • Lilian Wairimu Ngatho & Another Vs Moki Savings Co-operative Society Limited & Another
    (2014) eKLR
Jurisdiction invoked
Inherent jurisdiction and Order 45 Civil Procedure Rules (review); Order 1 Rule 10(2) (joinder)

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, "Muthondu Nduti v Wanyoike Kamau & 8 others [2020] KEELC 394 (KLR)", Case Analysis (2020). Notice of Motion dated 20th December 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/394/eng@2020-11-05

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