Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC No. 22 of 2014· [2020] KEELC 3148 (KLR)

Teresia Wambura Mutie v Mackenzie Sila Mutiso; Margaret Wanza & 3 others( Proposed Interested Parties/Applicants) [2020] KEELC 3148 (KLR)

Environment and Land Court
13 March 2020
2,774 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to reopen a concluded land case because the family seeking to join had their interests already defended by the defendant himself.

What this practically means

#

Executive summary

#
This was a ruling on a Notice of Motion dated 25th June, 2019 by four Proposed Interested Parties (the Defendant's wife and children) in a concluded land suit. The court, through Justice O. A. Angote, had on 10th December, 2018 decreed an injunction and eviction against the Defendant from a portion of Machakos/Kiandani/243, save for 100 feet by 260 feet which the Defendant bought in 1977. The Applicants sought joinder as Interested Parties, leave for new advocates, stay of execution, setting aside of the decree, and consolidation with Machakos ELC Case No. 61 of 2019 (O.S), in which they claim adverse possession of an 87 feet by 260 feet portion since 1981. The court framed three issues: joinder after judgment, setting aside the judgment, and consolidation. It held that while joinder after judgment is possible in exceptional circumstances - principally where a party shows he was not heard - the Applicants' occupation was based on the Defendant's purchase, their interests were ventilated by the Defendant, and they were not necessary parties. Their right to be heard was not breached, so the judgment would not be set aside. The issues in the two suits were dissimilar, precluding consolidation. The application was dismissed with costs. The court noted the intended adverse possession claim could proceed separately in ELC No. 61 of 2019 (O.S).

Key legal issues

#
01

Whether a party can be joined in a suit after judgment

Holding

Joinder after judgment is possible only in exceptional circumstances, principally where the party shows to the court's satisfaction that he was not heard; then the court must set aside its judgment and allow joinder.

Reasoning

Order 1 Rule 10 of the Civil Procedure Rules allows addition of a party at any stage of the proceedings. The ideal situation is joinder before judgment, but joinder after judgment is not barred where circumstances demand. Relying on J.M.K vs. M.W.M and Tang Gas Distributors Ltd, joinder may occur even after judgment where damages are yet to be assessed, and becomes inapplicable only once a suit is finally disposed of with nothing more to be done.

p. 3
02

Whether the Proposed Interested Parties were condemned unheard

Holding

No. Their interests in the suit land arose from the Defendant's purchase and were ventilated by him; they were not necessary parties and their right to be heard was not breached.

Reasoning

The occupation of the suit land was based on the Defendant's 1977 purchase from the Plaintiff's husband, as confirmed by the Defendant's evidence and by the 1st Proposed Interested Party's own affidavit of occupation since 1981. Since the proceedings concerned that purchase, which was by the Defendant and not the Proposed Interested Parties, their interests were ventilated through him and their claim that they should have been heard was a red herring.

p. 4
03

Whether the judgment should be set aside and the suits consolidated

Holding

The judgment was not set aside and consolidation was refused because the issues in the two suits are not similar.

Reasoning

Because the Proposed Interested Parties were not necessary parties and their right to be heard was not breached, there was no basis to set aside the judgment. Further, the issues of fact and law in ELC No. 22 of 2014 and Machakos ELC No. 61 of 2019 (O.S) are dissimilar, so consolidation would be improper. It follows that joinder and stay of execution also fail.

p. 4

Legal principles established

#
  • A party may be joined in a suit after delivery of judgment where circumstances demand, the most common instance being where the party shows he was not heard, in which case the court must set aside its judgment and allow joinder
  • A party whose interests in a suit were ventilated by another (e.g. a spouse or children whose interests were represented by the defendant) has no right to be joined or to have the judgment set aside

Court orders

#
  1. 1.The Application dated 25th June, 2019 is dismissed with costs

Authorities

#

Legislation

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

Cases cited (2)

  • J.M.K vs. M.W.M & Another
    (2015) eKLR
  • TANG GAS DISTRIBUTORS LTD V. SAID & OTHERS
    [2014] EA 448
Jurisdiction invoked
Order 1 Rule 10 of the Civil Procedure Rules, 2010 (inherent powers to add parties and set aside judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Teresia Wambura Mutie v Mackenzie Sila Mutiso; Margaret Wanza & 3 others( Proposed Interested Parties/Applicants) [2020] KEELC 3148 (KLR)", Case Analysis (2020). ELC No. 22 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3148/eng@2020-03-13

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