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)
The bottom line
#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
#Executive summary
#Key legal issues
#Locus standi of non-parties to apply for review
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
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.
Whether the applicants should be enjoined as interested parties
The proposed interested parties have a legitimate stake in the suit and the suit property and were properly enjoined as Defendants
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.
Whether the applicants have a tenable defence
The applicants have triable issues, including bona fide purchaser for value and possible compensation and indemnity claims, sufficient for plenary hearing
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.
Whether sufficient cause for review was established
Being condemned unheard, grounded on Article 50(1), constitutes sufficient cause under Order 45 rule 1
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.
Balancing closure of an aged matter against the right to be heard
The right to be heard prevailed over the equities of reopening a 20-year-old suit
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.
Legal principles established
#- 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
#- 1.The various applications filed by and on behalf of the proposed interested parties are allowed
- 2.The judgment dated and delivered on 30th July 2010 is reviewed and/or set aside
- 3.The proposed interested parties/applicants are admitted into the suit as Defendants
- 4.Plaintiffs/Respondents directed to amend originating pleadings to include the new Defendants as parties
- 5.Admitted Defendants to enter appearance within 14 days and file statements of defence within 14 days from service
- 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.Suit to be mentioned before the Hon. Deputy Registrar on 7th December 2021 for further directions
- 8.Each party to bear own costs of the applications
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.