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ELCAllowedNot stated in the excerpt· [2021] KEELC 1837 (KLR)

Lilian Wairimu Ngatho & aanother v Moki Savings Co-operative Society Ltd & another; Beatrice Njeri Gachukia & 19 others (Proposed Interested Parties/Applicants) [2021] KEELC 1837 (KLR)

Environment and Land Court
29 September 2021
6,672 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a 2010 land judgment because the purchasers whose titles it cancelled were never heard in the original case.

What this practically means

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Executive summary

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This Environment and Land Court judgment by Oguttu Mboya, J (Nairobi, Milimani, 29 September 2021) determined twenty applications by proposed interested parties seeking joinder and review of a judgment delivered by Ojwang, J on 30 July 2010, which invalidated titles derived from the original parcel L.R No. 5964/1 and permanently restrained dealings with it. The applicants, clustered by their law firms, claimed to be bona fide purchasers for value of subdivisions of the original parcel, registered owners of substantially developed properties, who were never joined or served and were condemned unheard. The Plaintiffs opposed, asserting the transfers occurred in the face of registered court orders and were fraudulent, and that non-parties cannot seek review. The court framed five issues. It held that 'any person' under Order 45 rule 1 includes non-parties with a direct interest, following Ngororo v Ndutha. It found the applicants to be genuinely interested parties with a legitimate stake, protected by Articles 27, 48 and 50(1) of the Constitution and the Muruatetu definition. It held they had bona fide triable issues, including bona fide purchaser pleas and potential compensation and indemnity claims. On sufficiency of cause, it credited their account of discovering the suit when a loan facility was declined by Equity Bank rather than from newspaper caveat notices, and held being condemned unheard founded sufficient cause. Balancing the equities of reopening a twenty-year-old suit against the right to be heard, the court allowed the applications, reviewed and set aside the 2010 judgment, admitted the applicants as Defendants, directed amendment of pleadings, set a timetable for appearance, defence and pre-trial, and ordered each party to bear its own costs of the applications.

Key legal issues

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01

Locus standi of non-parties to apply for review

Holding

Non-parties with a direct interest affected by a judgment fall within 'any person aggrieved' under Order 45 rule 1 and may apply for review

Reasoning

The term 'any person' in Order 45 is undefined and given its wide, literal meaning includes persons not party to the suit but with proven direct interest in the subject matter affected by the judgment. The court adopted the Court of Appeal's holding in Ngororo v Ndutha and found the applicants' titles derived from the mother title were directly impacted by the 2010 judgment.

p. 6
02

Whether the applicants should be enjoined as interested parties

Holding

The proposed interested parties have a legitimate stake in the suit and the suit property and were properly enjoined as Defendants

Reasoning

Their titles, derived from the mother title, were nullified by a judgment rendered without their participation, condemning them unheard. Articles 27, 48 and 50(1) of the Constitution guarantee equality, access to justice and fair hearing, and the Supreme Court's definition of an interested party in Muruatetu was satisfied. Neither side had sought joinder of the purchasers during the original trial.

p. 7
03

Whether the applicants have a tenable defence

Holding

The applicants have triable issues, including bona fide purchaser for value and possible compensation and indemnity claims, sufficient for plenary hearing

Reasoning

The plea of bona fide purchaser for value is available to the applicants, and its eventual success is a matter for trial. They may also pursue compensation claims against the Defendants and indemnity against the registrar. Only a bona fide triable issue need be shown at this stage, per Desbro (Kenya) Limited v Polypipies Ltd.

p. 8
04

Whether sufficient cause for review was established

Holding

Being condemned unheard, grounded on Article 50(1), constitutes sufficient cause under Order 45 rule 1

Reasoning

Non-parties cannot rely on error apparent on the face of the record, but their status as registered owners facing nullification of titles without being heard constitutes sufficient cause. The court found credible the applicants' deposition that they learned of the suit when a loan facility was declined by Equity Bank, not from the newspaper caveat advertisements relied on by the Plaintiffs.

p. 9
05

Balancing closure of an aged matter against the right to be heard

Holding

The right to be heard prevailed over the equities of reopening a 20-year-old suit

Reasoning

While equity and social justice favour closure of an aged matter, the national values of rule of law, equality and non-discrimination under Articles 10(2)(b), 22(1), 25(c), 27, 40(2), 48 and 50(1) required that no party be condemned unheard. The court balanced these competing values and inclined toward hearing the applicants.

p. 9

Legal principles established

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  • A non-party whose direct interest is affected by a judgment is entitled to apply for review under Order 45 rule 1
  • An interested party is one with a stake in the proceedings who will be affected by the decision though not a party ab initio
  • A bona fide triable issue need not be an issue that would succeed, only one warranting further interrogation at trial

Court orders

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  1. 1.The various applications filed by and on behalf of the proposed interested parties are allowed
  2. 2.The judgment dated and delivered on 30th July 2010 is reviewed and/or set aside
  3. 3.The proposed interested parties/applicants are admitted into the suit as Defendants
  4. 4.Plaintiffs/Respondents directed to amend originating pleadings to include the new Defendants as parties
  5. 5.Admitted Defendants to enter appearance within 14 days and file statements of defence within 14 days from service
  6. 6.Matter to be mentioned before the Deputy Registrar within 30 days of filing defence for pre-trial conference and be set down for hearing
  7. 7.Suit to be mentioned before the Hon. Deputy Registrar on 7th December 2021 for further directions
  8. 8.Each party to bear own costs of the applications

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 45 rule 1
  • Civil Procedure Rules, 2010Order 10 rule 1(2)
  • Civil Procedure Rules, 2010Order 32 rule 3(4)
  • Constitution of Kenya, 2010Article 10(2)(b)
  • Constitution of Kenya, 2010Article 22(1)
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 27(1) & (2)
  • Constitution of Kenya, 2010Article 40(2)
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure CodeSection 80

Cases cited (6)

  • Ngororo v Ndutha & Another
    (1994) eKLR
  • Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others
    (2014) eKLR
  • Francis Karioki Muruatetu & Another v Republic & 5 Others
    (2016) eKLR
  • Desbro (Kenya) Limited v Polypipies Ltd and Another
    (2018) eKLR
  • Okiya Omtata Okoiti & another v Okiya Omtata Okoiti & 4 others
    [2016] eKLR
  • The Hon. Attorney General v the Law Society of Kenya & Another, Civil Appeal (Application) No. 133 of 2011
Jurisdiction invoked
Order 45 rule 1 of the Civil Procedure Rules, 2010; Articles 27, 48 and 50(1) of the Constitution of Kenya, 2010

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, "Lilian Wairimu Ngatho & aanother v Moki Savings Co-operative Society Ltd & another; Beatrice Njeri Gachukia & 19 others (Proposed Interested Parties/Applicants) [2021] KEELC 1837 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1837/eng@2021-09-29

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