Muhindi & 4 others v Misoi; Masambu & another (Interested Parties)
The bottom line
#The Environment and Land Court dismissed a bid to revive an appeal over an adverse possession judgment, punishing forum shopping and unexplained delay.
What this practically means
#Executive summary
#Key legal issues
#Abuse of process by parallel applications
The application was an abuse of process because a similar application was pending before the Court of Appeal
The court found it undisputed that the Applicants had filed a similar application before the Court of Appeal. A litigant must choose which court should determine its application rather than gamble by filing in two courts simultaneously; such forum shopping constitutes abuse of court process.
Proper representation on record
Kutto & Kaira Nabasenge Advocates were not properly on record
Kipkosgey Choge & Co Advocates had already consented to Rotich, Langat & Partners Advocates taking over after judgment. A new firm could not validly obtain a consent to come on record from a firm that had already exited the record; the correct consent should have come from Rotich, Langat & Partners.
Joinder of interested parties after judgment
Joinder refused; interested parties cannot usefully be joined after judgment
Although the interested parties might be affected by execution, the court asked whether joinder would assist them. Since judgment had been delivered, their joinder would add nothing to the suit; their remedy lay in applying to be joined in the intended appeal before the Court of Appeal.
Extension of time to file notices of appeal
Extension refused; delay of almost two years unexplained and applicant not candid
Applying the Salat principles, the court found the delay inordinate and unexplained. The applicant's claim that she learned of the judgment only in 2023 was contradicted by the fact that she had engaged new advocates on record after judgment, which shows awareness of the judgment.
Jurisdiction to validate notices of appeal
The ELC has no jurisdiction to validate notices of appeal filed before the Court of Appeal
The court held that validation of notices of appeal lodged in the Court of Appeal is a matter for that court, not the trial court. The notices were described as incompetent, a point the Court of Appeal itself had reportedly conveyed to the Applicants.
Legal principles established
#- Filing the same application in two different courts at the same time is an abuse of the process of the court
- An advocate coming on record after judgment must obtain a consent from the firm currently on record, not from a firm that has already come off record
- The Environment and Land Court has no jurisdiction to validate notices of appeal filed before the Court of Appeal
Court orders
#- 1.The Notice of motion dated March 21, 2023 is dismissed
- 2.Costs of the application to the Plaintiff/Respondent
- Jurisdiction invoked
- Environment and Land Court Act, original jurisdiction over the suit; application under Rule 77 of the Court of Appeal Rules 2022 for extension of time and stay
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muhindi & 4 others v Misoi; Masambu & another (Interested Parties)", Case Analysis (2023). Environment & Land Case 12 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19201/eng@2023-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.