Shede v Mweri & 5 others; Okoth (Intended Defendant) (Environment & Land Case 196 of 2019) [2024] KEELC 6462 (KLR)
The bottom line
#The Mombasa Environment and Land Court set aside a land judgment because it affected an owner who was never joined or heard in the case.
What this practically means
#Executive summary
#Key legal issues
#Joinder of an Intended Defendant not party to the original suit
The joinder is necessary because the Applicant claims ownership of the suit land and his presence is needed to effectually and completely adjudicate all questions
The court applied the two-limbed test: whether the applicant has an identifiable interest in the subject matter, or is a necessary party whose presence enables the court to completely settle all questions. Guided by Order 1 Rules 3 and 10(2), the Meme v Republic criteria and the Supreme Court's interested-party test in Communications Commission of Kenya, the court found the Applicant's proprietary claims and absence from the proceedings sufficient to warrant joinder as a Defendant.
Whether the judgment of 31st October 2023 and decree of 18th December 2023 should be reviewed and set aside
Yes - the judgment was irregular, unfair and unconstitutional as it adversely affected the Intended Defendant without hearing him, and the grounds in Order 45 were satisfied
Applying Section 80 and Order 45, the court distilled three conditions: discovery of new and important matter, information not within knowledge when the decree was passed, and any other sufficient reason. Noting the Applicant was never served or joined despite claiming ownership, and the existence of conflicting certificates of confirmation of grant and court orders over the same plots, the court held a full trial was needed to untangle the inconsistencies; the judgment was unconstitutional in its effect on the Applicant's property rights.
Costs of the application
Costs of the application to the Intended Defendant; but he must pay the Plaintiff thrown away costs of Kshs. 120,000
Section 27 of the Civil Procedure Act provides that costs follow the event unless there is good reason to depart. Having found sufficient reason to set aside the judgment, the court awarded the application costs to the Intended Defendant, but also ordered him to pay thrown away costs to the Plaintiff for the inconvenience caused by his non-involvement from the outset.
Legal principles established
#- A court becomes functus officio after judgment but may review its own decision under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules on limited grounds, without unreasonable delay
- A review is confined to error apparent on the face of the record and is not an appeal
- A party with an identifiable stake in the subject matter whose presence is necessary for complete adjudication should be joined under Order 1 Rule 10(2)
Court orders
#- 1.The proceedings, the Judgment dated 31st October 2023 and the resultant decree issued on 18th December 2023 are unconditionally reversed and/or set aside
- 2.The Intended Defendant is granted leave to join the proceedings as a Defendant and the pleadings be amended to reflect as such
- 3.The Intended Defendant is granted 21 days to file and fully comply with Orders 6, 7 and 11 of the Civil Procedure Rules, 2010
- 4.The Intended Defendant to pay thrown away costs of Kshs. 120,000.00 to the Plaintiff before the next mention date
- 5.Mention on 6th November 2024 for Pre-Trial Conference; matter to be heard and finalized on 9th December 2024
- 6.Costs of the application awarded to the Intended Defendant
- Jurisdiction invoked
- Sections 3A, 63(e) and 80 of the Civil Procedure Act, Cap. 21; Orders 45 and 51(1) of the Civil Procedure Rules, 2010 (review of the court's own judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shede v Mweri & 5 others; Okoth (Intended Defendant) (Environment & Land Case 196 of 2019) [2024] KEELC 6462 (KLR)", Case Analysis (2024). Not stated in the judgment (Mombasa ELC suit; Notice of Motion dated 19th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6462/eng@2024-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.