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ELCAllowedRuling on Application dated 13 June 2022 (suit over land parcel Kitaru Settlement Scheme/13; suit filed 1 November 2016)· [2023] KEELC 215 (KLR)

Nyangacha v Nyagwaka; Barasa (Applicant) (Environment & Land Case 354 of 2016) [2023] KEELC 215 (KLR)

Environment and Land Court
26 January 2023
MSMunyao Sila
2,406 words in judgment
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The bottom line

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The Environment and Land Court in Kisii set aside a land judgment because the plaintiff's title had already been subdivided away before the ruling was delivered.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii (Munyao Sila J) determined an application dated 13 June 2022 by Wyclifi Nyaanga Nyagitari and Innocent Nyagitari Barasa seeking to be joined as interested parties and to have the judgment of 24 March 2022 stayed, reviewed, varied and/or set aside. The underlying suit was filed on 1 November 2016 by the plaintiff, claiming to be the registered owner of Kitaru Settlement Scheme/13, against the defendant for trespass, seeking a declaration of ownership, eviction and a permanent injunction. The defendant filed a defence but did not participate in the trial; the case proceeded ex parte and judgment was entered for the plaintiff. The applicants, relatives of the defendant, deposed that they had occupied the land for 54 years and that the plaintiff's title had been nullified by the Land Registrar on 8 January 2019, whereupon the land was subdivided into parcels 134-138, with titles issued to them before judgment. The respondent opposed, alleging the applicants were proxies of the defendant and that the subdivision was fraudulently procured during the pendency of the suit. The court held that the applicants had made out a case for joinder, having an identifiable stake as title-holders and occupants. Critically, the court found that the suit land ceased to exist on 26 August 2021, before judgment, so the declaration of ownership was futile; neither party had disclosed this to the court. The court joined the applicants as interested parties, set aside the judgment, barred execution, and made no orders as to costs. The question of the validity of the applicants' titles and the alleged fraud remains open for determination in the suit.

Key legal issues

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01

Whether the applicants should be joined as interested parties

Holding

They were joined because they hold titles to subdivisions of the suit land and occupy it, so execution would affect their proprietary interest.

Reasoning

Applying Order 1 Rule 10(2) and the Supreme Court's tests in Communications Commission of Kenya, the court asked what stake the intended interested parties have and whether they would suffer prejudice if denied joinder. The applicants hold titles to subdivisions of the suit land and are in occupation; execution of the judgment would lead to their eviction and extinguish their proprietary interest. Their presence was necessary for complete adjudication and to prevent proliferated litigation.

p. 5
02

Whether the judgment of 24 March 2022 should be set aside

Holding

The judgment was set aside because the plaintiff's title had been nullified and the land subdivided before judgment, rendering the declaration futile.

Reasoning

The green card showed the suit land ceased to exist on 26 August 2021, having been subdivided into parcels 134-138 registered in the applicants' names. When judgment was delivered the plaintiff held no title, and the court was not informed of these changes by either party. Declaring the plaintiff lawful registered proprietor of a non-existent parcel was futile, and the only just and fair determination was to set aside the judgment and allow joinder.

p. 5

Legal principles established

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  • An interested party is one with an identifiable stake or legal interest in the proceedings who will be affected by the decision.
  • A judgment delivered in respect of land whose title no longer exists (having been subdivided) cannot stand and is liable to be set aside.

Court orders

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  1. 1.Wyclifi Nyaanga Nyagitari and Innocent Nyagitari Barasa are joined as interested parties to the suit
  2. 2.The Judgment delivered on 24 March 2022 is set aside and no execution should issue in respect of that judgment
  3. 3.There will be no orders as to the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure ActSections 1, 1A, 1B, 3A and 63
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2

Cases cited (2)

  • Communications Commission of Kenya and 4 others vs Royal Media Services Limited & 7 others
    Petition No. 14 of 2014
  • Meme v Republic
    [2004] 1 EA 124
Jurisdiction invoked
Order 45 Rules 1 and 2 of the Civil Procedure Rules; Sections 1, 1A, 1B, 3A and 63 of the Civil Procedure Act; 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, "Nyangacha v Nyagwaka; Barasa (Applicant) (Environment & Land Case 354 of 2016) [2023] KEELC 215 (KLR)", Case Analysis (2023). Ruling on Application dated 13 June 2022 (suit over land parcel Kitaru Settlement Scheme/13; suit filed 1 November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/215/eng@2023-01-26

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