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ELCDismissedNotice of motion dated 19/12/2018 and notice of motion dated 11/1/2019 in Nairobi ELC Suit· [2020] KEELC 2353 (KLR)

Muthithi Investments Limited v Andrew S Kyendo & 22 others [2020] KEELC 2353 (KLR)

Environment and Land Court
20 May 2020
BEB M Eboso
3,518 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The court determined two applications in a concluded land suit in which Mutungi J had, in a judgment of 13/5/2014, declared the defendants trespassers on LR No 23917 Nairobi, ordered them to deliver vacant possession within 90 days, permanently enjoined them, and awarded the plaintiff general damages of Kshs 1,000,000 and costs. The defendants abandoned an intended appeal and remained in occupation. The 7th defendant's motion of 19/12/2018 sought stay of execution of the eviction order issued on 17/9/2018 pending compliance with the eviction provisions of the Land Act. The court held that the Land Act eviction framework does not apply to evictions in execution of court decrees, that no evidence showed any threatened breach of the eviction procedure, and that a litigant who has deliberately disobeyed an unchallenged decree for five years cannot invoke the court's protection; the application was dismissed as an abuse of process. The Nairobi City County Government's motion of 11/1/2019 sought joinder as an interested party and review or setting aside of the 2014 judgment on the basis that it is the original owner of the suit property. The court, applying the functus officio principle and the exceptional post-judgment joinder jurisdiction, held that the applicant was not aggrieved or adversely affected by the judgment, that no order in the suit was directed at it, and that its complaint lay against a consent order in HCCC No 457 of 1999 which must be challenged in that suit. Both motions were dismissed with costs to the respective applicants.

Key legal issues

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01

Whether stay of execution under the Land Act was justified

Holding

Dismissed - no basis for stay laid

Reasoning

The judgment of 2014 by Mutungi J remains unchallenged; the defendants abandoned their appeal and disobeyed the decree for five years. The Section 152E/152G eviction framework does not apply to execution of decrees, and there was no evidence of any intended breach of the eviction procedure.

p. 3
02

Whether review or setting aside of the judgment was warranted

Holding

Refused - criteria not satisfied

Reasoning

Review under Section 80 CPA and Order 45 rule 1 requires an aggrieved person. The orders of 13/5/2014 were directed at the defendants, not the applicant, who thus could not show it was aggrieved or adversely affected by the judgment.

p. 4
03

Whether post-judgment joinder of the County Government was permissible

Holding

Refused - not a necessary or aggrieved party

Reasoning

Post-judgment joinder is exceptional. The applicant had to show it was a necessary party improperly omitted and adversely affected. Its interest had been resolved by the consent of 8/2/2000 and the lease of 5/2/2001 in HCCC No 457 of 1999, which it could challenge only in that suit.

p. 5

Legal principles established

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  • The Land Act pre-2012 eviction framework (Sections 152E/152G) does not govern evictions carried out in execution of court decrees
  • A court will not grant a stay of execution to a litigant who has deliberately disobeyed an unchallenged court order
  • Before setting aside a regular judgment on an interested party's application, the court must be satisfied the applicant is adversely affected by that judgment
  • Joinder of a party after judgment is exceptional; the applicant must show it was a necessary party improperly omitted and that an adverse order was issued against it
  • A consent order can only be challenged in the suit in which it was issued, not in a concluded suit

Court orders

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  1. 1.The notice of motion dated 19/12/2018 brought by the 7th defendant is dismissed for lack of merit
  2. 2.The notice of motion dated 11/1/2019 brought by the Nairobi City County Government is dismissed for lack of merit
  3. 3.The applicants in the two applications shall bear costs of their respective applications

Authorities

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Legislation

  • Land ActSections 152B, 152G, 152(a)-(i), 152E
  • Civil Procedure ActSections 1, 1A, 1B, 34, 80
  • Civil Procedure RulesOrder 1 rules 1, 4(a), 9, 11, 13; Order 45 rule 1(1)

Cases cited (5)

  • Farooq Imtiaz Mohamed Malik v Director of Police Investments & 3 Others
    [2018]eKLR
  • Kenya Industrial Estates Limited v Anne Chepsiror & 5 Others
    [2015]eKLR
  • Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others
    [2016]eKLR
  • Merry Beach Limited v Attorney General & 18 Others
    [2018]eKLR
  • Trusted Society of Hudson Rights v Mumo Matemu & 5 Others
    [2014]eKLR
Jurisdiction invoked
Sections 1, 1A, 1B and 34 of the Civil Procedure Act; Order 1 rules 1, 4(a), 9, 11 and 13 of the Civil Procedure Rules; review under Section 80 of the Civil Procedure Act and Order 45 rule 1

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, "Muthithi Investments Limited v Andrew S Kyendo & 22 others [2020] KEELC 2353 (KLR)", Case Analysis (2020). Notice of motion dated 19/12/2018 and notice of motion dated 11/1/2019 in Nairobi ELC Suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2353/eng@2020-05-20

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