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ELCDismissedNotice of Motion dated 4th March 2020 (in the suit wherein judgment was delivered on 29th May 2019)· [2021] KEELC 3232 (KLR)

Edgar-Gear Investments Limited v Guido Pallada & another [2021] KEELC 3232 (KLR)

Environment and Land Court
20 May 2021
CYC.K. Yano
2,734 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa refused to reopen a finalized land case, ruling that you cannot join a case or seek review once judgment is delivered and the decree executed.

What this practically means

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Executive summary

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This was a ruling on the applicants' Notice of Motion dated 4th March 2020 seeking review and setting aside of a judgment and decree dated 29th May 2019, and leave to be enjoined as defendants in a suit in which the plaintiff had obtained an order for demolition of a perimeter wall enclosing an access road in Diani, Kwale. The applicants, owners of properties Kwale/Diani Complex/756, 757, 758 and 759, contended that the road was a private access serving a gated community, that the plaintiff had deliberately excluded them from the suit, and that unknown persons had irregularly opened the access road in 2012. The plaintiff opposed, arguing the court was functus officio, the applicants were guilty of delay, and were not aggrieved parties since the demolished wall stood on titles 953 and 523 belonging to the defendants. The court framed two issues: whether the applicants were necessary parties under Order 1 Rule 10(2), and whether the review threshold under Order 45 Rule 1 was met. Applying JMK v MWN, the court held joinder was impossible because the decree had been executed and no proceedings remained pending. On review, the court found the decree related to different titles from those the applicants owned and that the alleged 2012 fraud was by unnamed non-parties. The application was dismissed with costs to the plaintiff, with liberty to file a separate suit against the unnamed persons.

Key legal issues

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01

Whether the applicants could be joined as defendants after judgment and execution of the decree

Holding

Joinder was refused because no proceedings were pending; the suit had been finally disposed of.

Reasoning

Relying on JMK v MWN, the court noted Order 1 Rule 10(2) contemplates joinder in pending proceedings. The judgment had been delivered on 29th May 2019, the decree executed and the wall demolished. With nothing left to be done, there was no pending proceeding to which the applicants could be added as parties.

p. 3
02

Whether the applicants established new and important matter of evidence warranting review under Order 45 Rule 1

Holding

No proper basis for review was laid.

Reasoning

The judgment and decree sought to be reviewed related to titles Kwale/Diani Complex/953 and 523, whereas the applicants claim different titles (756-759). The alleged 2012 opening of the access road was attributed to unknown persons who are not parties to the suit. Their remedy lies in a separate suit against those persons.

p. 3

Legal principles established

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  • Joinder of a party under Order 1 Rule 10(2) is not possible where proceedings have been finally disposed of and the decree executed; there must be pending proceedings.
  • A person claiming to be aggrieved by an irregular act not done by any party to the suit must pursue a separate suit rather than review of the judgment.

Court orders

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  1. 1.The notice of motion dated 4th March 2020 is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63, 80
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 45 Rules 1, 2, 3
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 19
  • Public Roads and Roads of Access ActSection 9
  • Constitution of KenyaArticles 40, 47, 48, 50

Cases cited (11)

  • Accredo Ag & 3 Others v Steffano Uccelli & Another
    (2017) eKLR
  • Merry Beach Limited v Attorney General & 18 Others
    (2018) eKLR
  • JMK v MWM & Another
    (2015) eKLR
  • Peterson Ndugu & 5 Others v The Kenya Power & Lighting Co. Ltd
    Civil Appeal No. 208 of 2015
  • Mary Njeri Gatuha & 3 Others v George Muniu Mungai & 3 Others
    (2015) eKLR
  • Homescope Properties Ltd & Another v David Gachuki & Pamela Odera sued as Chairman & Secretary of Ken Ngong View Estate & Another
    (2014) eKLR
  • D. J. Lowe & Company Ltd v Bangue Indosuez
    (1998) eKLR
  • Rose Kaiza v Angelo Mpanju Kaiza
    (2009) eKLR
  • Joseph Njau Kingori v Robert Maina Chege & 3 Others
    (2002) eKLR
  • Central Kenya Ltd v Trust Bank & 4 Others
    CA No. 222 of 1998
  • Tang Gas Distributors Ltd v Said & Others
    (2014) EA 448
Jurisdiction invoked
Sections 1A, 1B, 3A, 63 and 80 of the Civil Procedure Act and Order 1 Rule 10(2), Order 45 Rules 1, 2 and 3 and Order 51 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, "Edgar-Gear Investments Limited v Guido Pallada & another [2021] KEELC 3232 (KLR)", Case Analysis (2021). Notice of Motion dated 4th March 2020 (in the suit wherein judgment was delivered on 29th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3232/eng@2021-05-20

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