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ELCDismissedNot stated in the judgment· [2022] KEELC 101 (KLR)
Bororo v Arika & another; Arika (Interested Party) (Environment and Land Appeal 5 of 2021) [2022] KEELC 101 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This was a ruling on a Notice of Motion dated 18th February 2022 in which the Applicant sought to be joined to an appeal as an Interested Party. He deponed that he had purchased a 50 feet by 50 feet portion of land parcel Nyaribari Chache/B/B/Boburia 1973 in 2000 from the Respondent's late father, George Harun Mokamba, had taken possession, and that the Respondent had subsequently chased him away, demolished his structure and refused to transfer the title despite written commitments and further payment. He said he was unaware of the suit in the Chief Magistrate's Court and wished to propagate his claim alongside the Appellant, whose claim he said was similar. The Respondent opposed, describing the Applicant as a stranger who had not demonstrated how he would be affected by the decision, and contending that a party cannot be joined to a concluded suit unless the judgment is set aside. The court identified a single issue: whether the Applicant should be joined to the appeal. Relying on Order 1 Rule 10(2) of the Civil Procedure Rules and authorities including Tang Gas Distributors, Absolom Opini Mekenye and Moses Wachira, the court held that the rule contemplates joinder in pending proceedings; where judgment has been entered, a party cannot be enjoined unless the judgment is revived or set aside to accommodate his participation. Since the subordinate court's judgment between the Appellant and Respondent had not been disturbed, the application lacked merit and was dismissed with costs to the Respondent, the Applicant being left at liberty to institute a separate suit subject to the Limitation of Actions Act.
Key legal issues
#01
Whether a person may be joined as an interested party to an appeal after the suit has been determined by the lower court
Holding
Joinder was refused; Order 1 Rule 10(2) contemplates joinder in pending proceedings and not in concluded suits, and the Applicant's proper remedy is a separate suit.
Reasoning
The court reviewed Order 1 Rule 10(2) and authorities on joinder of interested parties. It accepted that courts have discretion to add necessary parties but held the rule envisages proceedings not yet heard and determined. Since judgment had been entered in the subordinate court between the Appellant and Respondent, the Applicant could not be enjoined unless the judgment was set aside or varied. He remains free to file a fresh suit subject to limitation.
p. 3
Legal principles established
#- Where judgment has been entered, a party cannot be enjoined to the proceedings unless the judgment is set aside or otherwise varied to accommodate the participation of the enjoined party.
- An application for joinder under Order 1 Rule 10(2) can only be made in pending proceedings; once a suit or proceeding is finally disposed of and nothing remains to be done, the rule becomes inapplicable.
Court orders
#- 1.The application dated 18th February 2022 is dismissed with costs to the Respondent
- On appeal from
- Chief Magistrate's Court
- Not stated
- Jurisdiction invoked
- Order 1 Rule 10(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bororo v Arika & another; Arika (Interested Party) (Environment and Land Appeal 5 of 2021) [2022] KEELC 101 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/101/eng@2022-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.