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ELCDismissed· [2020] KEELC 3472 (KLR)

Elizabeth Cehptanui Rono & another v Edward Kiprono Ruto & another [2020] KEELC 3472 (KLR)

Environment and Land Court
27 February 2020
JMJ M Mutungi
1,051 words in judgment
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The bottom line

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The Environment and Land Court in Nakuru ruled that you cannot join a land case after judgment has been delivered and executed; file a fresh suit instead.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nakuru by J M Mutungi, J dealt with an application by Philip Rotich to be enjoined as an interested party in a concluded land dispute over parcel Nakuru/Saino Settlement Scheme/64, and to have the judgment, proceedings and orders stayed and set aside so he could file pleadings and be heard afresh. The underlying suit, decided by Munyao J on 13 June 2019, had held the plaintiff's title authentic and ordered cancellation of the parallel title held by the 1st defendant, who was ordered to vacate. The 1st defendant abandoned his appeal and, by consent of 25 July 2019, agreed to vacate within three months. The applicant asserted he held the original title, registered on 12 October 2005, had never sold the land, and that the sale and transfer documents used in the suit were forgeries. The plaintiff opposed, arguing the suit was concluded, the application was an attempt to frustrate execution of a valid judgment, and the applicant could bring a fresh action. Construing Order 1 Rule 10(2) of the Civil Procedure Rules, the court held that a party cannot be joined in concluded proceedings, noting the decree had technically been executed. The applicant's alleged cause of action was separate and distinct and should be ventilated in a fresh suit against the plaintiffs and/or defendant. The application was dismissed with costs to the plaintiffs.

Key legal issues

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01

Whether a person may be joined to a suit as an interested party after judgment and execution of the decree

Holding

Joinder is not available in concluded proceedings; the applicant should pursue a fresh suit

Reasoning

The court construed Order 1 Rule 10(2), holding the provision permits addition of parties only where adjudication is ongoing. Judgment had been delivered, a decree issued, and the 1st defendant had agreed to vacate, so the decree was technically executed. The applicant's claim, if genuine, was a separate and distinct cause of action triable in fresh proceedings against the plaintiffs and/or defendant.

p. 2
02

Whether the judgment and orders should be set aside to allow the applicant to be heard

Holding

Refused; the application was late and an afterthought

Reasoning

The applicant claimed ignorance of the suit, yet the land had been occupied by third parties since 2006 and his name featured during the trial without him coming forward. The court found the application intended to deny the plaintiff enjoyment of a valid judgment and amounted to closing the stable after the horse had bolted.

Legal principles established

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  • Joinder under Order 1 Rule 10(2) CPR is not available once proceedings have been concluded and the decree executed; an aggrieved third party must file a fresh suit

Court orders

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  1. 1.The applicant's Notice of Motion dated 20th September 2019 seeking joinder and setting aside of the judgment is dismissed
  2. 2.Costs of the application awarded to the plaintiffs

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules (joinder of parties)

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, "Elizabeth Cehptanui Rono & another v Edward Kiprono Ruto & another [2020] KEELC 3472 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3472/eng@2020-02-27

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