Komu v Principal Magistrates Court at Kerugoya & 2 others (Environment and Land Case E021 of 2023) [2024] KEELC 3319 (KLR)

The title abstract showed the Applicant was registered as proprietor in common with her brothers over LR Inoi/Kariko/506. Although she was not a party to the execution suit or the subsequent MCELC suit, her proprietary interest suffices. Locus standi was held to be a pure point of law properly raised at the earliest opportunity, and on the undisputed co-ownership the court found she had a right to be heard.

The court noted the co-owners could have objected to attachment under Order 22 of the Civil Procedure Rules and did not. Section 80 CPA permits any aggrieved person, even a non-party, to seek review, and Order 53 provided a judicial review route. Filing a fresh suit in another court cannot invalidate orders of a competent court. Reliance was placed on Florence Nyaboke Machani on the enforceability of un-appealed judgments.

While consent of co-owners is ordinarily required for dealings with undivided shares, such consent cannot be unreasonably withheld, and Section 94(2) expressly permits an application for partition without consent of all tenants in common, including by a person in whose favour an order for sale of an undivided share in execution of a decree has been made. The lower court's partition order was therefore proper.

The 3rd Respondent argued the suit was a non-starter for non-joinder of the Attorney General and non-compliance with Section 13A of the Government Proceedings Act. Counsel for the Applicant argued the defect was curable by amendment, relying on David Njenga Ngugi and Kenya Bus Service. The ruling ultimately upheld the objection on the ground that the court's jurisdiction was not properly invoked, without making a separate finding on this ground.