Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the extract (application dated 20th July 2023 in ELC OS No. 7 of 2010)· [2024] KEELC 4625 (KLR)

Abud & 2 others v Shuruti; Attari (Suing as a Legal Representative of the Estates of Hatim Mohamedali Jevanjee and Ebrahim Mohamedali) & 3 others (Proposed Interested Parties) (Enviromental and Land Originating Summons 29 of 2010) [2024] KEELC 4625 (KLR)

Environment and Land Court
12 June 2024
3,869 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to unwind a 2015 adverse possession ruling because review applications cannot be used to reopen concluded cases and hurt buyers who were never parties.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Malindi (E. K. Makori J.) on a Notice of Motion dated 20th July 2023 seeking review of the judgment of Angote J. delivered on 26th June 2015, which had declared the original applicants entitled to sub-division No. 224/III/MN by adverse possession and directed registration in their favour. The applicant, a successor in interest of the deceased registered proprietors, argued that the 2015 judgment was erroneous because the registered owners (all deceased) were never sued as respondents, and that the Originating Summons breached Order 37 rule 7(2) by failing to annex a certified extract of title. He sought joinder of four proposed interested parties (innocent purchasers) and reversion of the title to the deceased's estates. The proposed interested parties opposed, pleading inordinate delay, due diligence, and innocent purchaser status. The court applied the review principles in Hosea Nyandika Mosagwe v County Government of Nyamira (drawing on Ex parte Apollo Mboya), holding that review under Order 45 cannot be used to re-hear a concluded suit and substitute expansive fresh orders against persons who were never parties. The land had been subdivided and sold to third parties, mutating the substratum of the suit, and the application suffered severe laches. Joinder was refused as there was no pending suit. The application was dismissed with costs on 12th June 2024.

Key legal issues

#
01

Whether the 2015 judgment should be reviewed/set aside for failure to sue the registered proprietors and for non-annexation of a certified extract of title

Holding

The application fails; review does not lie in the expansive manner sought, and the consequences of the alleged error cannot be corrected by orders prejudicing non-parties

Reasoning

The court applied the settled principles that review is confined to the grounds in Order 45 rule 1 and to material available at the initial decision. Even if the 2015 decision was erroneous, the proposed correction would reopen and re-hear the entire suit and impose final orders on third parties who were never joined, including innocent purchasers for value. The land had long been subdivided and sold, so the original substratum had mutated. Inordinate delay of nine years further disentitled the applicant.

p. 8
02

Whether the proposed interested parties should be joined

Holding

Joinder refused; there is no pending suit capable of accommodating them

Reasoning

The proposed interested parties were never parties to the initial OS, the property has been transferred to them as innocent purchasers for value, and the orders sought against them would be final without any chance to defend. Joining them would not resolve the issues raised in the review application, which itself suffered severe laches and delay.

p. 8

Legal principles established

#
  • Review under Order 45 cannot be used to re-hear a suit and substitute the orders complained of with fresh, expansive orders affecting persons who were never parties to the initial suit
  • A court can review its decision only on the grounds enumerated in Order 45 rule 1, and an error apparent on the face of the record must be prima facie visible without detailed examination

Court orders

#
  1. 1.The application dated 20th July 2023 seeking review and joinder of interested parties is dismissed with costs

Authorities

#

Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure CodeSection 80
  • Civil Procedure RulesOrder 37 rule 7(2)
  • Civil Procedure RulesOrder 45 rule 1
  • Evidence ActSection 36(1)

Cases cited (5)

  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
  • Abdirashid Adan Hassan v Estate of WHE Edgley
    [2022] eKLR
  • Essolly Enterprises Limited v Benjoh Amalgamated Limited
    [2019] eKLR
  • Hosea Nyandika Mosagwe & 2 others v County Government of Nyamira
    [2022] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR, High Court of Kenya Nairobi Judicial Review Division Misc. Application No. 317 of 2018
Jurisdiction invoked
Review jurisdiction under Section 80 of the Civil Procedure Code and Order 45 rule 1 of the Civil Procedure Rules; the underlying suit was brought under Section 38 of the Limitation of Actions Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abud & 2 others v Shuruti; Attari (Suing as a Legal Representative of the Estates of Hatim Mohamedali Jevanjee and Ebrahim Mohamedali) & 3 others (Proposed Interested Parties) (Enviromental and Land Originating Summons 29 of 2010) [2024] KEELC 4625 (KLR)", Case Analysis (2024). Not stated in the extract (application dated 20th July 2023 in ELC OS No. 7 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4625/eng@2024-06-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.