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)
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
#Key legal issues
#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
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
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.
Whether the proposed interested parties should be joined
Joinder refused; there is no pending suit capable of accommodating them
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.
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.The application dated 20th July 2023 seeking review and joinder of interested parties is dismissed with costs
- 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.