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ELCDismissedNot stated in the judgment· [2021] KEELC 2785 (KLR)

Stephen Mbugua Gituthi & 2 others (Suing on their own behalf and on behalf of 57 others) v National Land Commission & another; Attorney General (Interested Party) [2021] KEELC 2785 (KLR)

Environment and Land Court
10 June 2021
JKJ.G. Kemei
1,754 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, the Principal Secretary Ministry of Water, Sanitation and Irrigation, filed a notice of motion dated 6/9/2020 seeking joinder as an interested party, a stay of mitigation and sentencing arising from a ruling of 18/6/2020, and review, setting aside or vacation of the Court's prohibitory orders issued on 31/7/2019. The underlying petition, instituted in 2018, challenged the compulsory acquisition of wayleaves over the Petitioners' properties; on 31/7/2019 the Court found the acquisition ultra vires the Constitution and statute, violating the Petitioners' property rights, and prohibited vesting of the wayleave absent due process and prompt just compensation. The Applicant argued public interest - that tax payers' money had been expended on the stalled project and that the orders caused irreparable economic loss - relying on Muruatetu on joinder and public-interest authorities. The Petitioners opposed, contending the Applicant was in contempt of court orders, guilty of inordinate delay, had no statutory or constitutional role in the issues, and that the application sought improperly to introduce new evidence and parties. The Court framed four issues: joinder, review, stay, and costs. Applying Order 1 Rule 10(2) CPR, Rule 7 of the Mutunga Rules and the Muruatetu principles, it held joinder is discretionary, not a right. It found that on delivery of its 31/7/2019 judgment it became functus officio, save for section 34 Civil Procedure Act processes, and declined to re-engage with the adjudicated dispute. The stay and review issues were rendered moot. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Intended Interested Party should be enjoined to the petition

Holding

The application for joinder failed because the Court had become functus officio upon delivery of its judgment; joinder is discretionary and requires a demonstrated direct stake.

Reasoning

The Court applied Order 1 Rule 10(2) CPR and Rule 7 of the Mutunga Rules, and the Muruatetu principles: an applicant must show personal interest, prejudice if not enjoined, and the case it intends to make. It noted the petition was decided on 31/7/2019 in the Petitioners' favour, and saving section 34 Civil Procedure Act processes, the Court was functus officio. It declined to introduce new issues and parties into an adjudicated case.

p. 3
02

Whether the prohibitory orders of 31/7/2019 should be reviewed and stay of mitigation and sentencing granted

Holding

Both issues were rendered moot by the functus officio finding and were not determined on the merits.

Reasoning

Having held it was functus officio, the Court found no benefit in addressing review or stay. The doctrine of finality, as explained in Raila Odinga v IEBC and Jersey Evening Post v Al Thani, bars the decision-maker from revoking or varying a perfected judgment; any challenge must lie on appeal or through the limited processes under section 34 of the Civil Procedure Act.

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Legal principles established

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  • An interested party must have a direct stake or legal interest in the dispute; joinder is not a matter of right but a discretionary exercise of the Court's powers.
  • Once a court has delivered final judgment it becomes functus officio and cannot review or vary its own decision except through the procedural processes under section 34 of the Civil Procedure Act.

Court orders

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  1. 1.The application dated 6/9/2020 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 156
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice & Procedure Rules 2013Rule 7; Rule 2
  • Civil Procedure ActSection 34

Cases cited (6)

  • Francis Karioki Muruatetu & Another vs. Republic & 5 Others as consolidated with 16 of 2013
    [2016] eKLR
  • Anne Mumbi Hinga vs Victoria Njoki Gathara
    {2009} eKLR
  • R (Corner House Research vs Director of SFO
    [2008] 4 All ER 927
  • Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others
    {2014} eKLR
  • Raila Odinga & Others vs. IEBC & Others
    [2013] eKLR
  • Jersey Evening Post Limited vs Al Thani
    [2002] JLR 542
Jurisdiction invoked
Original jurisdiction under the Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice & Procedure Rules 2013 and Order 1 Rule 10(2) of the Civil Procedure Rules

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, "Stephen Mbugua Gituthi & 2 others (Suing on their own behalf and on behalf of 57 others) v National Land Commission & another; Attorney General (Interested Party) [2021] KEELC 2785 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2785/eng@2021-06-10

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