Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissednot_stated_in_judgment· [2020] KEELC 2052 (KLR)

Mkeli Munyia Kioko v Anthony Ndii & 2 others; John Ndii Nyaga (Intended Interested Party/Applicant) [2020] KEELC 2052 (KLR)

Environment and Land Court
30 April 2020
2,270 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A man who waited 14 years to claim land by adverse possession lost his bid to join a concluded case, because Kenyan law requires a fresh originating summons, not a motion.

What this practically means

#

Executive summary

#
By notice of motion dated 4th December 2019, the Intended Interested Party sought leave to be joined as an Interested Party, setting aside of the judgment of 24th October 2019 and decree of 28th October 2019 in an originating summons for adverse possession over land parcel Mbeti/Gachuriri/166, a fresh hearing, and a mandatory injunction protecting his alleged occupation. He claimed to have been in open and exclusive occupation of parcel 166 since 1993, developing it with miraa trees. The Plaintiff opposed, contending the court had become functus officio, that Order 1 Rule 10 applies only before judgment, and that the Applicant was in fact the registered proprietor and occupier of the adjacent parcel 2167, a sub-division of parcel 127. The Defendants did not oppose. Framing four issues, the court held that joinder after judgment is possible where a legitimate justification exists, distinguishing Ashraf Bayusuf from Gichuki Gathaara Kimiti, but refused joinder here because an adverse possession claim must be instituted by originating summons under Order 37 Rule 7 and cannot be launched by notice of motion. Setting aside was refused: the Applicant did not controvert the Plaintiff's averments about parcel 2167, was an indolent litigant who filed no claim for over 14 years, and no Defendant ever mentioned his occupation of parcel 166; the annexed survey report, unsigned, undated and unendorsed, carried little probative value. The injunction was held superfluous, and costs were awarded to the successful Plaintiff, with none to the Defendants who had not opposed. The notice of motion was dismissed in its entirety.

Key legal issues

#
01

Joinder of an Interested Party after judgment

Holding

Joinder after judgment is possible where a legitimate justification is established, but the Applicant did not make out such a case.

Reasoning

The court distinguished Ashraf Bayusuf, where joinder was refused because the dispute had been fully determined, from Gichuki Gathaara Kimiti, where joinder was allowed because the parties had conspired to defeat the applicant's interest. Here the Applicant sought to institute his adverse possession claim through a notice of motion, a procedure unknown to law, so joinder was refused.

p. 3
02

Setting aside a judgment and ordering a fresh hearing

Holding

The Applicant failed to establish a legitimate basis for setting aside the judgment.

Reasoning

Three reasons were given: the Applicant did not controvert the Plaintiff's evidence that he occupies and is the registered proprietor of the adjacent parcel 2167; he was indolent, having brought no claim for over 14 years after his alleged claim matured in 1993; and none of the Defendants who defended the adverse possession suit ever suggested he occupied parcel 166. The unendorsed and unsigned survey report carried little probative value.

p. 3
03

Whether a mandatory injunction should issue

Holding

No injunction was granted because joinder and setting aside had been refused.

Reasoning

Since the Applicant could not be joined and the judgment was not set aside, the suit would not be heard afresh. An injunction pending a fresh hearing would therefore serve no purpose and was refused.

p. 3
04

Costs of the application

Holding

The Plaintiff, as the successful party, was awarded costs; the Defendants, who did not oppose, were denied costs.

Reasoning

Applying the proviso to Section 27 of the Civil Procedure Act and Hussein Janmohamed & Sons, costs follow the event unless the court directs otherwise for good reason. No good reason existed to deprive the successful Plaintiff of costs, while the Defendants were not entitled to costs for not opposing.

p. 3

Legal principles established

#
  • Whether an applicant can be joined in a suit after judgment depends on the facts and justification for joinder in each case.
  • An adverse possession claim must be instituted by originating summons under Order 37 Rule 7, not by notice of motion through joinder as an Interested Party.
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless there is good reason to deprive the successful party.

Court orders

#
  1. 1.The Applicant's notice of motion dated 4th December 2019 is dismissed in its entirety.
  2. 2.The Plaintiff is awarded costs of the application; the Defendants are not entitled to costs since they did not oppose the application.

Authorities

#

Legislation

  • Civil Procedure Rules 2010Order 1 Rules 10 & 14
  • Civil Procedure Rules 2010Order 10 Rule 11
  • Civil Procedure Rules 2010Order 21 Rule 6
  • Civil Procedure Rules 2010Order 37
  • Civil Procedure Rules 2010Order 45 Rules 1 & 5
  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A
  • Civil Procedure Act (Cap. 21)Section 100
  • Civil Procedure Act (Cap. 21)Section 27 (proviso)
  • Constitution of Kenya 2010Article 40
  • Constitution of Kenya 2010Article 159

Cases cited (3)

  • Ashraf Bayusuf V Jubilee Party of Kenya & 2 Others
    [2017] eKLR
  • Gichuki Gathaara Kimiti Vs Ndirangu Njogu & Another
    Nyeri HCCC No. 28 of 2004
  • Hussein Janmohamed & Sons V Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Articles 40 & 159 of the Constitution of Kenya 2010; Order 1 Rules 10 & 14, Order 10 Rule 11, Order 21 Rule 6, Order 37 and Order 45 Rules 1 & 5 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3A & 100 of the Civil Procedure Act (Cap. 21)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mkeli Munyia Kioko v Anthony Ndii & 2 others; John Ndii Nyaga (Intended Interested Party/Applicant) [2020] KEELC 2052 (KLR)", Case Analysis (2020). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2052/eng@2020-04-30

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