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ELCPartially AllowedNotice of Motion dated 22nd October 2024 in the Further Amended Petition dated 13th April 2023· [2025] KEELC 104 (KLR)

Gatabaki & another v Attorney General & 8 others; Equity Bank Kenya Limited (Intended Respondent) (Environment & Land Petition 44 of 2018) [2025] KEELC 104 (KLR)

Environment and Land Court
16 January 2025
6,999 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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Kenya's Environment and Land Court allowed Equity Bank, though never a party, to have a land judgment reviewed and set aside because its property rights were affected without a hearing.

What this practically means

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Executive summary

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Equity Bank (Kenya) Limited, not a party to the underlying petition, moved the Environment and Land Court by Notice of Motion dated 22nd October 2024 seeking a stay of execution of the judgment delivered on 23rd September 2024, review and setting aside of that judgment and decree, and its joinder as the 10th Respondent in the Further Amended Petition dated 13th April 2023. The Applicant claimed to hold a valid charge over L.R No. 28223/33, a parcel said to have arisen from the amalgamation of parcels litigated in the petition. The Petitioners/Respondents opposed, contending that the amalgamation creating the charged parcel was fraudulent and clandestine, that the Applicant was not a bona fide chargee, that the court lacked jurisdiction over charge-based claims, and that the Applicant's issues were res judicata. The court framed four issues: the Applicant's capacity to seek review; its actionable interests; res judicata; and the threshold for review. Applying Section 80 of the Civil Procedure Act and Order 45 Rule 1, and following Accredo AG v Uccelli, the court held that any aggrieved person, including a non-party, may apply for review. It found the Applicant had a direct stake in the subject matter as chargee, following Alton Homes Ltd v Chelogoi, and was a necessary party deserving joinder. The res judicata plea was held premature, no judgment invalidating the title or charge having been tendered. On the merits of review, the court found the judgment rested on the erroneous assumption that certain titles existed when they had ceased to exist, and that the extinguishment of the Applicant's rights without a hearing was an error apparent on the face of the record. Allowing the application, the court reviewed and set aside the judgment of 23rd September 2024 and the resultant decree, joined the Applicant as 10th Respondent, and directed the filing of a further amended petition, with costs of the application abiding the outcome of the petition.

Key legal issues

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01

Whether a non-party may apply for review of a judgment

Holding

Yes - any aggrieved person, not merely a party, may apply for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1, subject to demonstrating nexus to the decree and meeting the statutory grounds

Reasoning

The court reproduced Section 80 and Order 45 Rule 1 and noted that both provisions use the phrase 'any person who considers himself aggrieved' rather than 'party'. Following the Court of Appeal's decision in Accredo AG v Steffano Uccelli, which recognized that Order 45 accords locus standi to both non-parties and parties, the court held that the Applicant, though not a party to the petition, was clothed with capacity to seek review. Whether the application would succeed was a separate question.

p. 8
02

Whether the Applicant has demonstrable actionable interests in the suit property

Holding

Yes - the Applicant, as chargee of L.R No. 28223/33 which traces its roots to the parcels litigated in the petition, has a direct stake and is a necessary party deserving joinder under Order 1 Rule 10(2)

Reasoning

The Applicant held a registered charge over L.R No. 28223/33, which arose from the amalgamation of parcels that were the subject of the petition. Without making findings on the legality of the title, the court found that the judgment adversely affected the Applicant's interests. Relying on Alton Homes Ltd v Davis Nathan Chelogoi, where the Court of Appeal held that a registered owner and chargee are necessary and proper parties whose interests stand to be extinguished without a hearing, the court found joinder justified.

p. 11
03

Whether the Applicant's issues are barred by res judicata

Holding

No - the contention was premature; the Respondents adduced no judgment of a competent court invalidating the title or the charge, and the question can be canvassed substantively once the Applicant is joined

Reasoning

The Respondents contended the Applicant's issues had been disposed of in previous suits. The court observed that no judgment declaring L.R No. 28223/33 illegal or invalidating the Applicant's charge was placed before it. Res judicata requires intensive analysis, and the court declined to make a precipitate finding, holding the plea premature and capable of substantive determination once the Applicant is formally joined as a party.

p. 12
04

Whether the threshold for review was met

Holding

Yes - the judgment was entered on the erroneous assumption that L.R No. 5980/3 and 4508/1 existed when they had ceased to exist upon amalgamation, and the Applicant was condemned unheard; both constitute errors apparent on the face of the record

Reasoning

The court found that the judgment rested on the assumption that certain titles were in existence when they had allegedly ceased to exist through amalgamation, vitiating the judgment. Further, the extinguishment of the Applicant's chargee rights without a hearing offended Article 50(1) of the Constitution and itself constituted an error apparent on the face of the record. Applying National Bank of Kenya Ltd v Ndungu Njau on the parameters of review, and Muller's Code of Civil Procedure on the correction of errors causing miscarriage of justice, sufficient cause was demonstrated.

p. 13

Legal principles established

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  • Any aggrieved person, whether or not a party to the proceedings, has capacity under Section 80 of the Civil Procedure Act and Order 45 Rule 1 to apply for review, provided they demonstrate nexus to the decree or judgment
  • Where a party's rights in land stand to be extinguished by a judgment without having been heard, the joinder of that party as a necessary party is warranted and the failure to afford a hearing constitutes an error apparent on the face of the record warranting review

Court orders

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  1. 1.The Judgment delivered on the 23rd September 2024 and the resultant decree arising therefrom be and are hereby reviewed and set aside
  2. 2.The Applicant is joined to the proceedings and constituted as the 10th Respondent in the Further amended Petition dated the 13th April 2023
  3. 3.The Petitioners to file a further amended Petition to embody/include the Applicant as the 10th Respondent
  4. 4.The Further amended Petition to be filed and served within 14 days from the date of the order
  5. 5.The Applicant, once constituted as the 10th Respondent, at liberty to enter appearance and file a response to the further amended Petition within 14 days from the date of service
  6. 6.The Petitioners at liberty to file and serve a response to the pleadings, if any, filed by the Respondents including the 10th Respondent, within 14 days from the date of service
  7. 7.Costs of the Application shall abide the outcome of the Petition

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 80
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
  • Civil Procedure Rules, 2010Order 21 Rule 6
  • Constitution of Kenya, 2010Article 50(1)
  • Survey Act, Cap 299Section 31

Cases cited (16)

  • Accredo AG, Salama Beach Hotel Ltd, Hans Jurgen Langer & Zahra Langer v Stephano Hucceil & Issac Rudrot
    [2017]eKLR / (Civil Appeal 36 of 2015) [2017] KECA 85 (KLR)
  • Onyango v Attorney General
    [1987]eKLR
  • Mbaki v Macharia & Another
    [2005] 2 EA 2006
  • JMK v MWM & Another
    [2015] KECA 525
  • Alton Homes Ltd & Another v Davis Nathan Chelogoi & 5 Others
    [2020]eKLR
  • Nyamogo & Nyamogo Advocates v Kogo
    [2001] 1 EA 173
  • National Bank of Kenya Ltd v Ndungu Njau
    [1997]eKLR / (Civil Appeal 211 of 1996) [1997] KECA 71 (KLR)
  • Muller's The Code of Civil Procedure, 18th Edition Volume 3
    page 3652
  • Loice Wanja Rugendo & Another v Festus Mbaka Murango & 3 Others
    [2020]eKLR
  • Albata Mae Gacci v Attorney General & 4 Others
    [2006] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013]eKLR
  • Cooperative Bank of Kenya v Patrick Kangethe Njuguna
    [2017]eKLR
  • Kisekem Ltd v National Bank of Kenya Ltd
    [Land Case E014 of 2023] 2024 KEELC
  • E.T v Attorney General & Another
    [2012]eKLR
  • Africa Oil Turkana Ltd & 3 Others v Permanent Secretary Ministry of Energy & 7 Others
    [2016]eKLR
  • Ushago Diani Investment Ltd v Abdulwahab
    [Environment & Land Case 12 of 2023] [2023] KEELC 2213 [KLR]
Jurisdiction invoked
Section 80 of the Civil Procedure Act (Chapter 21, Laws of Kenya) and Order 45 Rule 1 and Order 1 Rule 10 of the Civil Procedure Rules, 2010

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, "Gatabaki & another v Attorney General & 8 others; Equity Bank Kenya Limited (Intended Respondent) (Environment & Land Petition 44 of 2018) [2025] KEELC 104 (KLR)", Case Analysis (2025). Notice of Motion dated 22nd October 2024 in the Further Amended Petition dated 13th April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/104/eng@2025-01-16

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