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ELCPartially AllowedNot stated in the judgment (Machakos Environment and Land Court suit)· [2024] KEELC 6058 (KLR)

Njoroge & another v Mulei; Land Registrar Machakos County & another (Interested Parties); Kimuyu & another (Objector) (Environment & Land Case 372 of 1994) [2024] KEELC 6058 (KLR)

Environment and Land Court
18 September 2024
ANA. NYUKURI
2,220 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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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) determined two applications arising from a judgment delivered on 4th May 2022 in which the plaintiffs' claim over 5 acres within Plot No. 26 Kitanga Settlement Scheme was allowed. The first application, dated 20th September 2022, by the plaintiffs sought eviction of the defendant, police security for the eviction, leave for the firm of R. K. Mutua & Company Advocates to come on record following the death of F. M. Mulwa Advocate, and costs. The second, dated 21st March 2023, was brought by Professor Peter Kimuyu and Margaret Kimuyu as objectors, seeking to vacate or set aside attachment of their property under the decree, asserting ownership of 6.5 acres within the larger plot. The court granted leave for the new advocates under Order 9 Rule 9 of the Civil Procedure Rules, holding that fair hearing entitles a party to counsel of choice where prior counsel has died. On the objection, the court found the objectors had been joined as interested parties on 15th October 2019 - an order never appealed, set aside or varied - and having failed to file pleadings, they could not transform themselves into objectors. Their claim rested on a purchase from the defendant, thus under her defeated perceived title, and their assertion that the suit property was different land occupied by one Mr. Mwarabu was dismissed as an afterthought. The objectors' application was dismissed with costs, and the plaintiffs' application allowed: eviction ordered, police security directed, and costs borne by the defendant and interested parties jointly and severally.

Key legal issues

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01

Leave for new advocate under Order 9 Rule 9

Holding

Leave granted as the former advocate F. M. Mulwa had died

Reasoning

Order 9 Rule 9 permits change of advocate after judgment; fair hearing requires representation by counsel of choice; since the plaintiff's counsel passed on, leave for R. K. Mutua & Company to come on record was warranted.

p. 4
02

Status of the objectors as parties

Holding

They were validly joined as interested parties on 15th October 2019 and remain parties

Reasoning

The joinder application of 14th October 2019 was allowed on 15th October 2019 and that order was never appealed, set aside, reviewed or varied. Having been joined and granted leave to file pleadings which they ignored, they cannot re-characterise themselves as objectors to execution.

p. 4
03

Whether eviction orders should issue

Holding

Eviction ordered against the defendant and all claiming under her, including the interested parties

Reasoning

The judgment gave the plaintiffs possession and eviction of the defendant and persons claiming under her title. The interested parties base their claim on a sale agreement with the defendant, so they claim under defeated title; the identification of the 5 acres was confirmed since both the defendant and interested parties acknowledged the suit property is the land they occupy.

p. 5

Legal principles established

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  • A party joined as an interested party who did not file pleadings cannot transform themselves into an objector to execution of the judgment
  • Purchasers claiming under a defendant whose title has been defeated are bound by the eviction decree
  • Fair hearing entails allowing a party to be represented by counsel of their choice, including where prior counsel has died

Court orders

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  1. 1.An order for eviction against the defendant from Plot No. 26 Kitanga Settlement Scheme measuring 5 acres is hereby granted.
  2. 2.The officer in charge Machakos Police Station is directed to provide security during the eviction process to maintain law and order.
  3. 3.The firm of R. K. Mutua & Company is granted leave to come on record for the plaintiffs in the place of F. M. Mulwa Advocate (deceased).
  4. 4.The costs of the application shall be borne by the defendant and interested parties jointly and severally.
  5. 5.The interested parties' application dated 21st March 2023 is dismissed with costs to the plaintiff.

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
Jurisdiction invoked
Inherent powers of the court under the Civil Procedure Act and Civil Procedure Rules (Order 9 Rule 9; applications for eviction and objection to execution)

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, "Njoroge & another v Mulei; Land Registrar Machakos County & another (Interested Parties); Kimuyu & another (Objector) (Environment & Land Case 372 of 1994) [2024] KEELC 6058 (KLR)", Case Analysis (2024). Not stated in the judgment (Machakos Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6058/eng@2024-09-18

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