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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 5244 (KLR)

Isogol v Ekurut & 3 others; Isogoli (Plaintiff); Ekurut & 2 others (Defendant) (Environment and Land Case 49 of 2018) [2024] KEELC 5244 (KLR)

Environment and Land Court
16 July 2024
4,189 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by Boaz N. Olao J of the Environment and Land Court, Busia, determined an undated Notice of Motion filed on 17th January 2024 by Fidelis Isogoli, Rophina Ajuma Ekurut and Christine Kadogo Ekurut, acting in person. They are the wife and daughters of the deceased 1st Defendant, Ekurut Opili Emonguluk, who allegedly sold one acre to the deceased plaintiff, Sarafino Ojuma Isogoli. The suit land had been the subject of a final judgment by Omollo J on 3rd March 2021, granting the plaintiff declarations of lawful title and adverse possession over South Teso/amukura/1964, later amended by a ruling of 26th January 2023. The Applicants sought joinder, substitution of Fidelis Isogoli as plaintiff, review and setting aside of the judgment and ruling, leave to re-open the suit, and a temporary injunction against implementation of the decree. The Court framed five issues. It enjoined the Applicants as interested parties, finding they had a recognizable stake in the suit land, applying the Supreme Court's definition in Trusted Society of Human Rights Alliance v Mumo Matemu as approved in Muruatetu. It declined to join Fidelis Isogoli as plaintiff, holding that a person cannot be added as plaintiff without written consent, per Civicon Ltd v Kivuwatt. Review was refused: no new and important matter, no error apparent on the face of the record, no other sufficient reason, and inordinate unexplained delay of over three years; complaints of doctored evidence were matters for appeal, per Pancras T. Swai v Kenya Breweries. A non-default final judgment cannot be set aside (Kenya Power v Benzene Holdings), and the Court declared itself functus officio. The injunction was refused as no suit remained pending. Prayers 3 to 6 were dismissed; the Applicants were ordered to bear their own costs.

Key legal issues

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01

Joinder of applicants as interested parties

Holding

The Applicants, as wife and daughters of the alleged vendor, have a recognizable stake in the suit land and are enjoined as interested parties

Reasoning

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.

p. 5
02

Review and setting aside of the judgment and ruling

Holding

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

Reasoning

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.

p. 7
03

Temporary injunction

Holding

Injunction declined because there is no suit pending disposal after the final judgment

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Prayer No 2 granted - the Applicants enjoined in the proceedings
  2. 2.Prayers No 3, 4, 5 and 6 declined
  3. 3.The Applicants shall bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 10 Rule 11, Order 12 Rule 7, Order 36 Rule 10 (referred to in cited case)
  • Black's Law Dictionary 10th Editiondefinition of Interested Party

Cases cited (7)

  • Trusted Society Of Human Rights Alliance -v- Mumo Matemu & 5 Others
    Supreme Court Petition No 12 of 2013 [2015 eKLR]
  • Muruatetu & Another -v- R, Kenya National Commission On Human Rights & Others (interested Parties)
    Supreme Court Petitions No 15 and 16 of 2015 [2016 KESE 12 KLR]
  • Civicon Ltd -v- Kivuwatt Limited & 2 Others
    C.A. Civil Appeal No 45 of 2014 (2015 eKLR)
  • Francis Origo & Another -v- Jacob Kimali Mungala
    C.A Civil Appeal No 149 of 2001 [eKLR 2 KLR 307]
  • Pancras T. Swai -v- Kenya Breweries Ltd
    2014 eKLR
  • Belinda -v- Fredrick Kangwamu
    1963 E.A. 557
  • Kenya Power & Lighting Company Ltd -v- Benzene Holdings T/a Wyco Paints
    C.A. Civil Appeal No 132 & 133 of 2014 [2016 eKLR]
Jurisdiction invoked
Article 162(2)(b) of the Constitution / Environment and Land Court Act (court addressing its own proceedings; not expressly stated)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.