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ELCAllowedEnvironment and Land Appeal E007 of 2024 (appeal from Kitui Civil Case ELC 7 of 2020)· [2024] KEELC 5417 (KLR)

Musyoka & 3 others v Kisangi & another (Environment and Land Appeal 3 of 2022) [2024] KEELC 5417 (KLR)

Environment and Land Court
18 July 2024
5,300 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court can still hear applications to join new parties even after a consent order is filed and the case file is marked closed.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kitui against the ruling of Senior Principal Magistrate Hon. M. Kasera delivered on 7th July 2020, which upheld a preliminary objection and dismissed the appellants' Notice of Motion dated 27th May 2020 seeking, among other things, to set aside consent orders recorded on 12th March 2020 between Mumbe Thuva Kisangi (plaintiff) and Vata Thuva Kisangi (defendant) registering six subdivisions of Nzambani/Kyangwithya/425 in the plaintiff's name, and to be joined to the suit. The preliminary objection asserted that the trial court was functus officio, the file was closed, and the applicants were strangers to the suit. The ELC identified whether the objection grounds were pure points of law and then considered functus officio, holding that because the decree on the consent had not been executed, the trial court's judgment was not perfected and it retained competence to hear post-consent applications, including for joinder under Order 1 Rule 10(2) of the Civil Procedure Rules, which may be exercised at any stage. Relying on Telkom Kenya v John Ochanda, Raila Odinga v IEBC, Alton Homes v Chelogoi and Communications Commission of Kenya v Royal Media Services, the court held the trial court erred in upholding the preliminary objection instead of hearing the joinder application on merit. The appeal was allowed, the ruling quashed and set aside, the preliminary objection dismissed, and the joinder application remitted to the trial court for hearing on merit, with each party bearing their own costs of the appeal given the family nature of the dispute.

Key legal issues

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01

Nature of a preliminary objection

Holding

The grounds in the preliminary objection (functus officio, closed file, non-party status, role of interested parties) were legal issues properly raised.

Reasoning

Applying Mukisa Biscuit, a preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct. The court found the functus officio and interested-party grounds to be points of law, while grounds 2 and 3 were factual but uncontested, with the reopening question being one of law.

p. 5
02

Whether the trial court was functus officio

Holding

No - the consent had been adopted but the judgment had not been perfected; the decree had not been executed, so the trial court was not barred from engaging with the case.

Reasoning

Relying on Telkom Kenya v John Ochanda and Raila Odinga v IEBC, the court held that functus officio bars merit-based re-engagement only once a final judgment has been perfected. Here the suit was settled by consent but the decree had not been executed, so proceedings were not finally concluded and the trial court could hear post-consent applications.

p. 8
03

Joinder after consent and closure of file

Holding

Order 1 Rule 10(2) permits joinder at any stage of proceedings; a party may apply to be joined even after a consent order is adopted and the file closed.

Reasoning

Following Alton Homes v Chelogoi, the power under Order 1 Rule 10(2) may be exercised at any stage unless the suit is finally disposed of with nothing more to be done. Since the decree was unexecuted, the trial court erred in holding the applicants had no right to apply for joinder.

p. 8
04

Criteria for admission of an interested party

Holding

The trial court erred in upholding the preliminary objection without hearing the joinder application on merit against the legal criteria (stake, relevance, prejudice).

Reasoning

Applying Communications Commission of Kenya v Royal Media Services and Meme v Republic, an interested party is one with a stake who will be affected by the decision. The trial court should have heard the application on merit to determine whether the appellants qualified and in what capacity.

p. 10

Legal principles established

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  • A court that has recorded a consent judgment is not functus officio so as to be barred from entertaining applications such as for joinder, execution or setting aside, until its judgment has been perfected and the decree executed.
  • Joinder of a party under Order 1 Rule 10(2) of the Civil Procedure Rules may be sought at any stage of the proceedings, even after a consent order has been adopted and the file marked closed.
  • An interested party is one who has a stake in the proceedings and will be affected by the decision; joinder may be allowed where the party's presence is necessary to effectually and completely adjudicate on all questions in the suit.

Court orders

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  1. 1.This appeal is hereby allowed.
  2. 2.The ruling and order of the Senior Principal Magistrate Hon. M. Kasera in Kitui Civil Case number ELC 7 of 2020 delivered on 7th July 2020 be and is hereby quashed and/or set aside.
  3. 3.The preliminary objection dated 16th June 2020 is hereby dismissed.
  4. 4.The Appellant's application dated 27th May 2020 is remitted to the trial court for hearing and determination on merit.
  5. 5.Each party shall bear their respective costs of the appeal.

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 1 Rule (2)
  • Mutunga RulesRule 2
  • Court of Appeal RulesRule 77

Cases cited (18)

  • Central Kenya Limited v Trust Bank and 4 Others
    CA No. 22 of 1998
  • Human Rights Alliance v. Mmo Matemo and 5 others
    (2014) eKLR
  • Joseph Njau Kingori vs Robert Maina Chege and 3 others
    (2002) eKLR
  • Francis Karioki Muruatetu & Another vs Republic and 5 others
    (2016) eKLR
  • Raila Odinga vs IEBC & 3 others
    Petition No. 5 of 2013 [2013] KESC 8 (KLR)
  • Teresia Kwamboka Mauti v. Ezekiel Nyaranga Mauti and 5 others
    (2022) eKLR
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd –VS- West End Distributors Ltd.
    [1969] E.A. 696
  • Mbita v Barasa & 2 others; Laborde & 10 others (Intended Defendant)
    (Environment & Land Case E004 of 2023) [2023] KEELC 22168 (KLR)
  • Telcom Kenya Ltd –Vs- John Ochanda
    [2014] eKLR
  • Jersey Evening Post Limited –Vs- A. Thani
    [2002] JLR 542
  • Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others
    [2020] eKLR
  • David Kiptugen v Commissioner of Lands, Nairobi & 4 others
    [2016] eKLR
  • Centre for Rights Education and Awareness & Another v. John Harun Mwau & 5 Others
    CA No. 74 of 2014
  • Kamlesh Pattni Vs Starwood Hotels and Resorts World Wide Inc. & 7 Others
    Civil Application No. NAI 330 of 2001 (UR 176/2001)
  • Commercial Bank of Africa Limited Vs Isaac Kamau Ndirangu
    Civil Appeal No. 157 of 1991, (CA); [1992] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Meme v. Republic
    [2004] 1 EA 124
On appeal from
Senior Principal Magistrate's Court, Kitui
Kitui Civil Case number ELC 7 of 2020
Jurisdiction invoked
First appeal from the Senior Principal Magistrate's Court under the Environment and Land Court Act / Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Musyoka & 3 others v Kisangi & another (Environment and Land Appeal 3 of 2022) [2024] KEELC 5417 (KLR)", Case Analysis (2024). Environment and Land Appeal E007 of 2024 (appeal from Kitui Civil Case ELC 7 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5417/eng@2024-07-18

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