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ELCDismissedNot stated in judgment (suit re: six parcels of land, Machakos ELC)· [2024] KEELC 5985 (KLR)

Mueke & another (Suing as the Administrators of Simeon Mueke Maingi – Deceased) v Mulwa & 3 others; Vito Auto Spares Limited & 2 others (Interested Parties) (Environment & Land Case 301 of 2009) [2024] KEELC 5985 (KLR)

Environment and Land Court
18 September 2024
3,797 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

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A Kenyan court blocked two outsiders from reopening an old land case, ruling they must show a real stake in the property, not just an opinion.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (A. Nyukuri, J) disposed of two applications arising from a land suit over six parcels registered in the name of the late Stephen Mulwa Ilivi and a consent recorded on 12th May 2014 and adopted as judgment on 27th January 2017. R. M. Matata & Company Advocates applied to be joined as interested party and for a declaration that the consent was null and void, alleging it was forged by Jackson Kimeu Kakonzi, an advocate struck off the Roll. Kakonzi separately sought joinder and review/setting aside of the 27th January 2017 ruling, claiming he attended the consent meeting only as a witness and that his right to fair administrative action was infringed by failure to summon him. The court found the prayers to set aside the consent res judicata, having been raised and determined in the 1st defendant's application dismissed by a ruling of 31st January 2020 which was never appealed. On joinder, the court applied Order 1 Rule 10(2) of the Civil Procedure Act and authority requiring a recognizable stake. It held that Matata and Kakonzi had no recognizable stake: Matata remains a witness whose evidence was already heard, and Kakonzi admitted no proprietary interest, his real complaint being against Mr. Muindi, a non-party, which must be pursued in a separate suit. A witness, the court held, has no constitutional right to testify where not a party. Both applications were dismissed with costs to the plaintiffs.

Key legal issues

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01

Res judicata - setting aside the consent of 12th May 2014

Holding

The issue of whether the consent of 12th May 2014 should be set aside on the basis that it was not signed by R. M. Matata Advocates and that Mr. Kakonzi lacked capacity was previously heard on merit and determined with finality on 31st January 2020, and is therefore res judicata.

Reasoning

The 1st defendant filed an application dated 19th March 2018 raising identical grounds. Mr. Matata gave evidence and was cross-examined. The court dismissed that application by its ruling of 31st January 2020, which has not been set aside or appealed against. The elements of Section 7 of the Civil Procedure Act - same issue, same parties/privies, competent court, final decision - were satisfied.

p. 5
02

Joinder of Mr. Matata as interested party

Holding

Rejected. Mr. Matata claimed no interest in the suit property; his only grievance was that he did not sign the consent. He remains a witness.

Reasoning

The suit was already determined; it concerned proprietary rights in the suit property, which Mr. Matata does not claim. His evidence on the consent was already heard and considered in the 31st January 2020 ruling. A witness whose testimony has been taken cannot be elevated to party status merely because he disagrees with the court's treatment of his evidence; his remedy lies in appeal or review by the actual parties.

p. 7
03

Joinder of Mr. Kakonzi as interested party

Holding

Rejected. He admitted having no proprietary interest and his real grievance is against Mr. Muindi, an advocate who is not a party to this suit.

Reasoning

Mr. Kakonzi confirmed he has no claim over the suit properties; his interest is an alleged breach of trust by Mr. Muindi who drafted the consent. That dispute cannot be litigated in proceedings in which the suit was determined in 2017. His complaint of violation of fair administrative action failed because no administrative decision was made against him and a witness has no right to insist on testifying.

p. 7

Legal principles established

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  • A person seeking joinder as an interested party must demonstrate a recognizable stake in the issues before court, not just some sort of interest in the proceedings.
  • A witness, however relevant their evidence, remains a witness and cannot be elevated to a party in a suit where they have no recognizable stake or claim.
  • A witness has no constitutional right to give evidence in a case where he is not a party.

Court orders

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  1. 1.The applications dated 2nd September 2022 and 24th November 2022 are dismissed
  2. 2.Costs to the plaintiffs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure Rules (Civil Procedure Act)Order 1 Rule 10(2)

Cases cited (2)

  • Communications Commission of Kenya & 4 Others v Royal Media Services Limited & 7 Others
    [2014] eKLR
  • Meme v Republic
    [2004] 1 EA 124
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; Civil Procedure Act (Order 1 Rule 10(2)) and Section 7 (res judicata)

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, "Mueke & another (Suing as the Administrators of Simeon Mueke Maingi – Deceased) v Mulwa & 3 others; Vito Auto Spares Limited & 2 others (Interested Parties) (Environment & Land Case 301 of 2009) [2024] KEELC 5985 (KLR)", Case Analysis (2024). Not stated in judgment (suit re: six parcels of land, Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5985/eng@2024-09-18

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