Mkeli Munyia Kioko v Anthony Ndii & 2 others; John Ndii Nyaga (Intended Interested Party/Applicant) [2020] KEELC 2052 (KLR)
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
#Key legal issues
#Joinder of an Interested Party after judgment
Joinder after judgment is possible where a legitimate justification is established, but the Applicant did not make out such a case.
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.
Setting aside a judgment and ordering a fresh hearing
The Applicant failed to establish a legitimate basis for setting aside the judgment.
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.
Whether a mandatory injunction should issue
No injunction was granted because joinder and setting aside had been refused.
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.
Costs of the application
The Plaintiff, as the successful party, was awarded costs; the Defendants, who did not oppose, were denied costs.
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.
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.The Applicant's notice of motion dated 4th December 2019 is dismissed in its entirety.
- 2.The Plaintiff is awarded costs of the application; the Defendants are not entitled to costs since they did not oppose the application.
- 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.