Cherere (Suing as the Administrator of John Cherere Mwangi - Deceased) v Githumbi (Sued as the Administrator of the Estate of Kithumbi Kichuhi - Deceased) & 2 others; Kandenge & 8 others (Intended Defendant)
The bottom line
#Kenya's Environment and Land Court allowed nine landowners to join a land dispute but told them to seek review or appeal, not automatic reopening of the judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants should be joined as parties to the suit
Yes - the applicants, as registered owners of subdivisions of the cancelled parcel who were not parties to the suit, established the threshold for joinder.
Applying Order 1 Rule 10(2) and the test in Habiba W. Ramadhan and the Mativo J formulation in Kenya Medical Laboratory Technicians, the court found the applicants' titles derive from the cancelled parcel Mwerua/Kagio/646 and they were not parties when cancellation was ordered, giving them a legal, identifiable interest necessary for complete adjudication.
Whether the applicants should be granted leave to file defences and setting aside of the judgment
No - the proper remedies are review and appeal under Orders 45 and 42, which the applicants did not seek.
The court held that the Order 10 consequences of non-appearance and default of defence do not apply, so setting aside was not the correct route; the applicants remain at liberty to move for review or appeal at the appropriate time.
Whether a stay of execution should issue
No - the prayer is premature since the newly joined parties have filed no pleadings upon which stay could be determined.
The applicants had only just been admitted as parties and had not filed pleadings; the court could not assess a stay application without such material.
Legal principles established
#- A party whose titles are resultant subdivisions of land affected by a court order, and who was not a party when the order was made, has a legal and identifiable interest entitling them to be joined under Order 1 Rule 10(2).
Court orders
#- 1.The application dated 15th November 2021 is allowed only to the extent that the applicants are joined as defendants to the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; application under Order 1 Rule 10(2) of the Civil Procedure Rules for joinder of parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherere (Suing as the Administrator of John Cherere Mwangi - Deceased) v Githumbi (Sued as the Administrator of the Estate of Kithumbi Kichuhi - Deceased) & 2 others; Kandenge & 8 others (Intended Defendant)", Case Analysis (2023). Environment & Land Case 21 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21964/eng@2023-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.