Violet Lucy Sikuku & 2 others v Martin Sikuku Wambukha & another; Knight Vutagwa Adeli & 3 others (Interested Parties) [2021] KEELC 987 (KLR)
The bottom line
#A Kenyan family land dispute shows that once a court delivers a final judgment, you cannot undo it by a new application — your options are appeal or review.
What this practically means
#Executive summary
#Key legal issues
#Whether a final judgment of the Court can be set aside on an application of this nature
The prayer to set aside the final judgment of 15th July 2021 was dismissed; there is no procedural provision for setting aside a final judgment, and the plaintiffs' recourse is appeal or review
The judgment of 15th July 2021 was a final judgment delivered after hearing all parties, not an ex parte judgment. The Court of Appeal in Kenya Power & Lighting Co Ltd v Benzene Holdings held that the Civil Procedure Rules only provide for setting aside default judgments. A party aggrieved by a final judgment must seek review under Order 45 or lodge an appeal under Order 42. The application provided no lawful basis for setting aside.
Whether the proposed interested parties (purchasers of sub-divided parcels) could be joined at this stage
The application for joinder was flawed because the proposed parties were unaware of and not served with the application, and the plaintiffs should have impleaded them at filing or by amending the plaint
The plaintiffs acknowledged the proposed interested parties were proprietors of parcels arising from the sub-division and that their failure to enjoin them earlier rendered the case nugatory. The court noted parties necessary for determination should be joined, but the plaintiffs were free to amend the plaint; the court will not guide parties on how to conduct litigation. Non-service on the affected proprietors compounded the defect.
Whether the inhibitory orders of 20th November 2017 should remain in force
The inhibition was lifted under section 70(d) of the Land Registration Act since the suit had been concluded
The inhibition on the parcels arising from sub-division of WEST BUKUSU/SOUTH MATEKA/4922 and 4926 was granted 'until further orders of the Court'. With the suit heard, judgment issued, and the application to set aside dismissed, the court held it was the right time to lift the inhibition, as contemplated by section 70(d) of the Land Registration Act.
Whether an affidavit jointly sworn and signed by two defendants is competent
The court expressed the view that an affidavit, being evidence under Order 19 Rule 5, can only be sworn by one person, but declined to make a definitive ruling since the issue was not addressed by the parties
The defendants' replying affidavit was jointly signed by two persons. Relying on Francis Kariu Gakumbi v Piliska Njoki Maina, Omolo JA had doubted that two people can swear one oath, but the enlarged bench in the same case held he expressed himself too widely. The court noted the parties did not address the issue and that the affidavit was not of much significance to the ruling.
Legal principles established
#- An affidavit is sworn evidence and, under Order 19 Rule 5 of the Civil Procedure Rules, must ordinarily be sworn by one person
- The Civil Procedure Rules contain no provision for setting aside a final judgment; the remedies are review under Order 45 or appeal under Order 42
- All persons necessary for the effective determination of a case should be joined, but at the time of filing or by amendment - not by the court's guidance after judgment
Court orders
#- 1.The application (Notice of Motion dated 23rd July 2021) is dismissed
- 2.The orders of inhibition placed upon the land parcels NO WEST BUKUSU/SOUTH MATEKA/4922 and 4926 are lifted
- 3.As the parties are family, each shall meet their own costs
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over the suit land; the application was not premised on any provision of law ('The application is signed by the plaintiffs but is not premised on any provision of the law.')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Violet Lucy Sikuku & 2 others v Martin Sikuku Wambukha & another; Knight Vutagwa Adeli & 3 others (Interested Parties) [2021] KEELC 987 (KLR)", Case Analysis (2021). Notice of Motion dated 23rd July 2021 (arising from suit over land parcel NO WEST BUKUSU/SOUTH MATEKA/4926). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/987/eng@2021-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.