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ELCDismissedNot stated in the judgment· [2020] KEELC 3366 (KLR)

Mathias Masiva Ahaza & 2 others v Samuel Gichuki & 2 others; Mariam Sali Said & another (Intended Interested Parties) [2020] KEELC 3366 (KLR)

Environment and Land Court
15 January 2020
CYC.K. Yano
1,692 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to let home buyers join a concluded land case, ruling their claims involved a different property and the court's decision was final.

What this practically means

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Executive summary

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The intended interested parties, Mariam Salim Said and another, applied by Chamber Summons and Notice of Motion both dated 11th February 2019 to be enjoined in this suit as interested parties, for stay of execution of the judgment and decree, for the judgment to be set aside, and for leave to file their defences out of time. They deponed that they purchased houses without land on Plot No. 413/VI/MN Magongo from Mildred Nyangwange and John Ngeso Pamba, and only learnt of the suit when a decree was pinned on their houses in January 2019, claiming they were never sued or served. The plaintiffs, trustees of Magongo Pentecostal Assemblies of God, opposed through a preliminary objection and replying affidavit, noting that the suit, filed on 27th May 2014 over Subdivision No. 3517 (Original No. 3490/29) Section VI Mainland North, had been heard and determined in their favour. The court, C.K. Yano J, held that the applicants' claimed interests relate to a different parcel of land from the suit property, that their rights could be pursued separately, and that the court was functus officio having delivered judgment and had its decree extracted. Relying on Patel v East Africa Cargo Handling Services Ltd and Shah v Mbogoh, the court further held that the proposed defence raised no triable issues. Both applications were dismissed with costs to the plaintiffs on 15th January 2020.

Key legal issues

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01

Joinder of interested parties

Holding

Joinder under Order 1 rule 10(2) declined; the applicants' claimed interests are in a different parcel from the suit property and nothing is pending adjudication

Reasoning

The court compared the parcels: the applicants purchased houses on Plot No. 413/VI/MN Magongo, while the suit concerned Subdivision No. 3517 (Original No. 3490/29) Section VI Mainland North. Since these are different parcels, the applicants' rights, if any, can be pursued separately. Further, judgment was delivered on 6th October 2018 and the decree extracted, so the court is functus officio and cannot reopen the suit.

p. 2
02

Setting aside judgment and stay of execution

Holding

Refused; the intended defence raises no triable issues as it relates to a different parcel of land

Reasoning

Applying Patel v East Africa Cargo Handling Services Ltd and Shah v Mbogoh, the court noted it has wide discretion to set aside judgments on just terms, but a regular judgment will not be set aside absent a defence on merits. The applicants' own proposed defence admits their houses are on a different plot, so no triable issue arises. Stay of execution was similarly not merited.

p. 2

Legal principles established

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  • A court becomes functus officio once it has rendered a decision that has been acted upon or executed; an aggrieved party must pursue appeal or review
  • A court will not usually set aside a regular judgment unless satisfied there is a defence on merits

Court orders

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  1. 1.The Notice of Motion dated 11th February 2019 and the Chamber Summons dated 11th February 2019 are dismissed with costs to the plaintiff
Jurisdiction invoked
Order 1 rule 10(2) of the Civil Procedure Rules and the court's inherent discretion (Environment and Land Court Act)

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, "Mathias Masiva Ahaza & 2 others v Samuel Gichuki & 2 others; Mariam Sali Said & another (Intended Interested Parties) [2020] KEELC 3366 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3366/eng@2020-01-15

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