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ELCDismissedNot stated on the face of the ruling· [2024] KEELC 7467 (KLR)

Kutto v Kugu; Keter (Intended Interested Party) (Environment & Land Case 123 of 2012) [2024] KEELC 7467 (KLR)

Environment and Land Court
12 November 2024
3,872 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan land court refused to let a stranger join a concluded case, ruling you cannot seek relief in a suit after judgment has already been delivered.

What this practically means

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Executive summary

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Esther Keter, widow and administratrix of the late Eliud Kiprotich Arap Kugu (the deceased Defendant), applied by notice of motion dated 12/08/2024 under Order 1 Rule 10(2) and Order 45 Rule 1(A) of the Civil Procedure Rules and Sections 3, 3A and 63(e) of the Civil Procedure Act. She sought to be enjoined as an interested party, review of the judgment delivered on 13/03/2013 (which found encroachment by the Defendant on the Plaintiff's parcel Moi's Bridge/Moi's Bridge Block 12 (Excullen)/244), setting aside of consequential orders, and leave to file pleadings. She alleged the Plaintiff misled the court at formal proof by concealing the root of his title and a 2003 sale agreement. Rebecca Kutto opposed, arguing the application was incompetent, an abuse of process, res judicata by Eldoret ELC No. 5 of 2015, and made after an unexplained 13-year delay, the Applicant having already failed in a substitution application dismissed on 20/05/2024. The court framed three issues: competence of the prayers, merit, and costs. It held that substantive prayers by a person not yet enjoined are made by a stranger and incompetent; that joinder requires live proceedings, whereas only execution remained; and that the draft Defence and Counterclaim was barred under Section 6 of the Civil Procedure Act by prior Eldoret proceedings. The court also criticised defective drafting of prayer 2. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Competence of substantive prayers by a non-party

Holding

Prayers 4 and other substantive prayers, being made by an Intended Interested Party who was not yet enjoined, were incompetent and made by a stranger to the proceedings

Reasoning

The court adopted the reasoning in Masinjila that a proposed interested party who has not been granted leave to be enjoined is a stranger with neither the rights nor duties of a party. Only parties may move the court substantively. Since the prayer for review was premised on joinder that had not occurred, it failed. The application also did not plead that the prayer was conditional upon joinder being granted.

p. 5
02

Merits of joinder as interested party after judgment

Holding

The application was unmerited: there were no live proceedings, the Applicant had already failed in a substitution application decided on merits, and she was abusing court process

Reasoning

The court noted that judgment had been delivered in 2013 and only execution remained, so the suit was not pending. The Applicant's earlier application for substitution dated 04/12/2023 was dismissed on 20/05/2024 and was never appealed or set aside. The court described her successive attempts in different capacities as an abuse of process and urged her to give vacant possession rather than vex the court.

p. 7
03

Res sub judice regarding the proposed Defence and Counterclaim

Holding

The draft Defence and Counterclaim raised matters subject to Eldoret ELC No. 5 of 2015, barred under Section 6 of the Civil Procedure Act

Reasoning

The Respondent annexed the plaint and defence in Eldoret Land Case No. 25/2015 (also referred to as Eldoret ELC No. 5 of 2015) concerning the same parties and subject matter. The court found the matters were not novel, and introducing them again in this suit would be procedurally unacceptable under Section 6 of the Civil Procedure Act. The plea of an arguable defence therefore failed on this account in addition to being made by a stranger.

p. 7
04

Defective drafting of prayer 2

Holding

Prayer 2 was poorly drafted as it sought enjoinment only pending determination of the application itself

Reasoning

The court observed that the prayer, couched as 'pending the hearing and determination of this application', would lapse once the application was determined, leaving the Applicant nowhere. The court criticized the poor drafting as symptomatic of a wider problem of inadequate pleadings by legal professionals, calling on law schools and training bodies to address it.

p. 7

Legal principles established

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  • A person who has not been joined as an interested party is a stranger to the proceedings and cannot make substantive prayers in the matter
  • Joinder of an interested party requires live, pending proceedings

Court orders

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  1. 1.The application dated 12/08/2024 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 1 Rule 10(2)
  • Civil Procedure Rules 2010Order 45 Rule 1(A)
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSection 6
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 2 and 7(1)
  • Constitution of KenyaProtection of property rights (right to be heard before property is taken away)

Cases cited (8)

  • Kenya Medical Laboratory Technicians and Technologists Board and 6 others v Attorney General and 4 others
    [2017] eKLR
  • Elton Homes Builders v Davies and others
    [2019] eKLR
  • Gichinga Kibutha v Caroline and Nduku
    [2018] eKLR
  • Masinjila (Suing as the legal representative of the Estate of Joshua Andala Masinjira (Deceased)) v Solmat Enterprises & 2 others; Kamau (Proposed Interested Party) (Suing on behalf of the Catholic Diocese of Kitale)
    (Environment & Land Case 37 (E033) of 2021) [2023] KEELC 17006 (KLR)
  • Francis Karioki Muruatetu & another v Republic & 5 others
    Petition 15 as consolidated with 16 of 2013 [2016] eKLR
  • Hopf v Director of Survey & 2 Others; Sakaja & 2 Others (Interested Parties)
    (Environment & Land Case 4 of 2021) [2022] KEELC 6 (KLR)
  • David Kiptugen v Commissioner of Lands, Nairobi & 4 others
    [2016] eKLR
  • Communications Commission of Kenya & 4 Others v Royal Media Services Limited
Jurisdiction invoked
Order 1 Rule 10(2) and Order 45 Rule 1(A) of the Civil Procedure Rules 2010; Sections 3, 3A and 63(e) of the Civil Procedure Act

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, "Kutto v Kugu; Keter (Intended Interested Party) (Environment & Land Case 123 of 2012) [2024] KEELC 7467 (KLR)", Case Analysis (2024). Not stated on the face of the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7467/eng@2024-11-12

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