Republic v Land Registrar Rachuonyo East; Tindi (Exparte Applicant); Nyandega (Intended Interested Party) (Environment and Land Judicial Review Miscellaneous Application 6 of 2021) [2024] KEELC 533 (KLR)
The bottom line
#A Kenyan land buyer who was left out of a court case got a second chance after the court set aside a judgment made without him.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended interested party should be joined to the judicial review application and the ex parte judgment set aside
The court granted joinder, set aside the ex parte judgment of 29th July 2021, and granted leave to respond, finding the orders sought fell within the applicant's constitutional rights of access to justice and fair hearing.
The court noted the ex parte judgment was delivered without the intended interested party and that it was technical in nature. Relying on the Court of Appeal's observation that a technical judgment is not the best judgment, and on the constitutional rights under Articles 25(c), 48 and 50(1), the court held the applicant had established entitlement to orders 3, 4 and 5 of the motion and granted them.
Whether the judicial review application is sub-judice given the pending Oyugis CMC Environment and Land case suit No. 11B of 2021
The judicial review application was stayed in its entirety under section 6 of the Civil Procedure Act.
The court observed that the 2nd plaintiff, 1st defendant and 2nd defendant in the Oyugis civil suit correspond to the ex parte applicant, intended interested party and respondent respectively, and that the subject matter of both cases is the same suit land, Central Kasipul/Kawere/2147. Since the two cases run simultaneously, the court found the matter sub-judice and stayed the judicial review application.
Legal principles established
#- The court has discretionary power under Order 1 Rule 10(1) and (2) of the Civil Procedure Rules, 2010 at any stage of the suit to add a person as a party where their presence is necessary to enable the court to effectively and completely adjudicate upon all questions in the suit.
- Where two suits with the same subject matter run simultaneously, the later matter is stayed under section 6 of the Civil Procedure Act as sub-judice.
- Parties are entitled to the rights of access to justice and fair hearing under Articles 25(c), 48 and 50(1) of the Constitution.
Court orders
#- 1.Joseph Aroka Nyandega joined as interested party in the ELC Judicial Review application
- 2.Judgment delivered on 29th July 2021 and consequential orders made pursuant thereto set aside
- 3.Leave granted to the interested party to respond to the Notice of Motion application dated 3rd May 2021 (the Judicial Review application)
- 4.The Judicial Review Application in its entirety stayed under section 6 of the Civil Procedure Act, Chapter 21, Laws of Kenya
- 5.Costs of the application be in the cause
- Jurisdiction invoked
- Articles 50(1) and 159(1)(d) of the Constitution of Kenya, 2010 and Order 1 Rule 10(2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Land Registrar Rachuonyo East; Tindi (Exparte Applicant); Nyandega (Intended Interested Party) (Environment and Land Judicial Review Miscellaneous Application 6 of 2021) [2024] KEELC 533 (KLR)", Case Analysis (2024). ELC Judicial Review Application (Oyugis), Notice of Motion dated 16th August 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/533/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.