Isogol v Ekurut & 3 others; Isogoli (Plaintiff); Ekurut & 2 others (Defendant) (Environment and Land Case 49 of 2018) [2024] KEELC 5244 (KLR)
The bottom line
#A Busia court let family members join a land case as interested parties but refused to reopen a final judgment, stressing that complaints belong on appeal.
What this practically means
#Executive summary
#Key legal issues
#Joinder of applicants as interested parties
The Applicants, as wife and daughters of the alleged vendor, have a recognizable stake in the suit land and are enjoined as interested parties
The Court applied the Supreme Court definition in Trusted Society of Human Rights Alliance v Mumo Matemu, approved in Muruatetu, that an interested party is one with a stake in the proceedings who will be affected by the decision. The Applicants' interest in the land allegedly sold by their husband and father was clear from the application's grounds and supporting affidavit.
Review and setting aside of the judgment and ruling
Review is not available: no new matter, no error apparent on the face of the record, no other sufficient reason, and the delay of over three years was unexplained; a non-default final judgment can only be challenged on appeal
Section 80 of the Civil Procedure Act and Order 45 Rule 1 require discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, plus application without unreasonable delay. The Applicants' complaints went to the correctness of the decision, which is an appellate matter, and the delay of three years and four months was unexplained. Following Kenya Power & Lighting v Benzene Holdings, a final judgment after full hearing cannot be set aside.
Temporary injunction
Injunction declined because there is no suit pending disposal after the final judgment
Order 40 Rule 1 permits temporary injunctions to preserve property in dispute pending determination of a suit. The suit had been heard and determined by final judgment on 3rd March 2021 with no appeal noted, so no suit remained pending for an injunction to protect.
Legal principles established
#- One cannot be added as a plaintiff to proceedings without consent in writing, though anyone may be joined as a defendant even against their wish
- An erroneous view of evidence or law is a ground of appeal, not a ground for review; a final judgment after full hearing cannot be set aside, only reviewed or appealed
- An applicant for review must move the court without unreasonable delay
Court orders
#- 1.Prayer No 2 granted - the Applicants enjoined in the proceedings
- 2.Prayers No 3, 4, 5 and 6 declined
- 3.The Applicants shall bear their own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution / Environment and Land Court Act (court addressing its own proceedings; not expressly stated)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isogol v Ekurut & 3 others; Isogoli (Plaintiff); Ekurut & 2 others (Defendant) (Environment and Land Case 49 of 2018) [2024] KEELC 5244 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5244/eng@2024-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.