Wanyoike Mungai v Beatrice Karanja & another [2021] KEELC 1840 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a land judgment because the registered owner was never joined or heard in the case.
What this practically means
#Executive summary
#Key legal issues
#Joinder of a necessary party
The Proposed 2nd Defendant, being the registered owner of the suit property when the suit was filed, heard and determined, ought to have been enjoined and is now joined as 2nd Defendant.
Order 1 Rule 10(2) empowers the court to add any person whose presence is necessary to effectually and completely adjudicate all questions in the suit. The certificate of title produced showed transfer to Broadway Bakery Limited on 7th August 2015, before the suit was filed on 14th June 2018. Its interest was adversely affected by the judgment and decree issued in its absence, making joinder necessary.
Review and setting aside of judgment on grounds of natural justice and mistake
The judgment and decree of 1st November 2019 were reviewed and set aside because they were obtained without joining the registered owner, violating the right to be heard and to protection of property.
Review is available under Section 80 of the Civil Procedure Act and Order 45 Rule 1 for mistake, error apparent on the face of the record or sufficient reason. The Applicant's title dated 7th August 2015 was not controverted, and its occupation was unrebutted. Following the court's own precedent in Alton Homes Ltd, property cannot be arbitrarily taken away without a hearing; the right to be heard can only be achieved by reviewing and setting aside the judgment.
Legal principles established
#- A person whose registered interest in suit property will be affected by orders of the court is a necessary party and cannot be condemned unheard.
- Where a party was not served or had no notice of proceedings resulting in judgment against its interest, the judgment ought to be set aside as of right (ex debito justitiae).
Court orders
#- 1.Leave granted to Broadway Bakery Limited to be enjoined in the suit as the 2nd Defendant
- 2.The Judgment delivered on 1st November 2019 and the Decree issued therein, together with all consequential orders, reviewed and set aside
- 3.The application dated 7th December 2020 allowed entirely with costs
- Jurisdiction invoked
- Inherent jurisdiction and review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules; joinder under Order 1 Rule 10(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanyoike Mungai v Beatrice Karanja & another [2021] KEELC 1840 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1840/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.