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ELCAllowedBungoma HCC No. 78 of 2005· [2023] KEELC 381 (KLR)

Wanyonyi v Mauko; Mahaya (Aggrieved Party) (Civil Case 78 of 2005) [2023] KEELC 381 (KLR)

Environment and Land Court
24 January 2023
BOBoaz N. Olao
4,814 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A landowner who was never part of a lawsuit can still have the judgment affecting his land reopened and be heard in court.

What this practically means

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Executive summary

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This ruling by Boaz N. Olao J of the Environment and Land Court determines a Notice of Motion dated May 10, 2022 by Vincent Sakwa Mahaya, a non-party who holds title to land parcel East Bukusu/West Sang'alo/3038, one of the sub-divisions of the original suit parcel East Bukusu/West Sang'alo/724. In the principal judgment delivered on November 14, 2019, the plaintiff's claim was dismissed, the defendant's counter-claim was allowed with a declaration that he was entitled to 14 acres held in trust for the Estate of Mauko Khatoro, and costs were awarded to the defendant. When the Land Registrar Bungoma wrote to the Applicant on April 26, 2022 requiring surrender of his title for cancellation, he moved the court seeking to be enjoined and for review, setting aside and/or vacation of the judgment. The court framed four issues: locus standi, the Applicant's stake in the subject matter, joinder after judgment, and the orders to make. Relying on Alfred Njau on locus standi and Muruatetu on interested parties, the court held the Applicant has an identifiable proprietary stake and, under the audi alteram partem principle, had to be heard regardless of how he acquired title. Following Accredo Ag, it held Order 45 permits review by a non-party; setting aside was unavailable to him. Applying Order 1 rule 10(2) and Mercy Beach Ltd, the court found joinder after judgment permissible in exceptional circumstances where adverse orders issued against an unheard person. The court allowed the application, enjoined the Applicant as an Interested Party, reviewed and vacated the November 14, 2019 judgment and decree, directed an inhibition on parcels 3037-3040, and ordered the plaintiff to pay the Applicant's costs.

Key legal issues

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01

Locus standi of a non-party to seek review

Holding

The Applicant, as registered proprietor of one of the sub-divisions affected by the judgment, has locus standi to apply for review.

Reasoning

The court adopted the definition of locus standi in Alfred Njau and held that whether the Applicant has a right to be heard turns on whether he has an identifiable interest in the parcel. He holds a title deed issued June 6, 2018 over parcel 3038, a sub-division of the suit land, so he has an identifiable stake and is not a busy body.

p. 4
02

Availability of setting aside versus review for a non-party

Holding

Setting aside a judgment is a remedy for a party who failed to appear; a non-party's remedy is review under Order 45.

Reasoning

The court examined Orders 10 and 12 of the Civil Procedure Rules and concluded that setting aside presupposes a party who did not file pleadings or attend hearing. The Applicant, never being a party, could not invoke that remedy but could seek review under Order 45 as a person considering himself aggrieved, following Accredo Ag.

p. 5
03

Joinder of a party after judgment

Holding

The court has power under Order 1 rule 10(2) to join a person at any stage, including after judgment, in exceptional circumstances.

Reasoning

Although some courts have held a court becomes functus officio upon delivering judgment, the predominant view per Mercy Beach Ltd and Rose Wakanyi Karanja is that joinder after judgment is justified where adverse orders issued against a person who was not heard. Joining the Applicant enables the court to effectually and completely adjudicate on all sub-divisions and prevents proliferated litigation.

p. 7
04

Delay in bringing the application

Holding

The application was filed without unreasonable delay.

Reasoning

The Applicant deponed that he only learned of the judgment upon receiving the Land Registrar's letter of April 26, 2022 and filed the application fourteen days later, on May 11, 2022, which the court found not to be an unreasonable delay.

p. 9

Legal principles established

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  • A non-party holding title to land adversely affected by a judgment has locus standi to apply for review of that judgment under Order 45 of the Civil Procedure Rules.
  • A person may be joined as a party even after judgment where adverse orders were issued against a person who was neither given notice of the suit nor heard.
  • The rules of natural justice require that a person be heard before adverse orders are made against him, irrespective of how he obtained his title.

Court orders

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  1. 1.The Applicant is enjoined in these proceedings as an Interested Party and the firm of Maina & Macharia Advocates is granted leave to represent him
  2. 2.The judgment dated November 14, 2019 and the subsequent decree are reviewed and vacated forthwith
  3. 3.Either of the parties shall be at liberty to move this Court in any manner they deem fit or file any other action as may be necessary
  4. 4.The Land Registrar Bungoma is directed to forthwith place an order of inhibition on land parcels No East Bukusu/West Sang'alo/3037, 3038, 3039 and 3040 pending hearing and determination of this and any other suits in which the said titles shall be in dispute or until any other orders of the Court
  5. 5.The plaintiff shall meet the Applicant's costs of this application
Jurisdiction invoked
Articles 48 and 50(1) of the Constitution; section 80 of the Civil Procedure Act; Orders 22 rule 22 and 45 rule 1 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, "Wanyonyi v Mauko; Mahaya (Aggrieved Party) (Civil Case 78 of 2005) [2023] KEELC 381 (KLR)", Case Analysis (2023). Bungoma HCC No. 78 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/381/eng@2023-01-24

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