Chirea & 4 others v National Land Commission & another; Kuria (Intended Defendant) (Environment & Land Case 218 of 2021) [2023] KEELC 650 (KLR)
The bottom line
#A Kenyan land court set aside a consent judgment because the registered owner of the disputed property was never joined or heard in the original case.
What this practically means
#Executive summary
#Key legal issues
#Joinder of a person with proprietary interest in the suit property
The Applicant, as registered owner of the suit property, ought to have been joined at institution; the reliefs sought affected her proprietary rights
The court found that the reliefs in the plaint—adoption of the NLC determination, declarations of ownership, and directions to the Land Registrar—directly affected the registered owner's proprietary rights. Guided by Meme v Republic, joinder was necessary to settle all questions, protect the Applicant's rights and prevent proliferated litigation. Counsel for the Plaintiffs, as officers of the court, should have ensured joinder.
Whether the court could set aside the consent judgment
Yes. Although consent judgments bind parties, the constitutional right to a fair hearing (Article 50(1)) and fair administrative action (Article 47) constitute public policy sufficient to justify setting aside a judgment entered without joining an interested party
Order 10 rule 11 confers a judicial discretion to set aside judgment entered under that Order, to be exercised judiciously. Relying on Wachira Karani v Bildad Wachira and Samson Munikah v Wedube Estates, the court held that fraud is not the sole ground; public policy derived from Articles 50 and 47 applied here because the Applicant was never joined or heard. Substantive justice outweighed technical objections about whether the judgment was exparte or by consent.
Res judicata and sub judice
The matter is not res judicata; it is sub judice in that the issues in Petition No. 5 of 2021 (formerly ELC Petition 9 of 2019) were stayed and the Petitioner directed to litigate them in this suit
The pleadings in the petition were not availed, but the court's own ruling in Petition No. 5 of 2021 showed the same parties and suit property. In that ruling the court had stayed the petition and directed the Petitioner to move ELC Mombasa Cause No. 465 of 2017. Accordingly the Applicant could not be faulted for bringing the present application, and the res judicata objection failed.
Legal principles established
#- A person whose proprietary rights are directly affected by a suit must be joined as a party and accorded a fair hearing; a judgment entered without joining such a person may be set aside
- Fraud is not the only ground for setting aside a consent judgment; public policy and other reasons which would enable the court to set aside an agreement also suffice
Court orders
#- 1.The Exparte consent judgement and decree delivered on 9/4/2018 set aside
- 2.The firm of Mungai Kamau & Co Advocates allowed to come on record for the Applicant
- 3.The Applicant enjoined as a defendant and the Plaintiffs to amend the plaint and serve the Applicant with the amended pleadings
- 4.Both suits mentioned before the court for further directions on a date to be given
- 5.Costs in the cause
- Jurisdiction invoked
- Articles 50 and 159 of the Constitution of Kenya 2010; Sections 1A, 1B, 3 and 3A and Order 10 rule 11 of the Civil Procedure Act and Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chirea & 4 others v National Land Commission & another; Kuria (Intended Defendant) (Environment & Land Case 218 of 2021) [2023] KEELC 650 (KLR)", Case Analysis (2023). ELC Case No. 465 of 2017 (Application dated 27th June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/650/eng@2023-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.