Gatabaki & another v Attorney General & 8 others; Equity Bank Kenya Limited (Intended Respondent) (Environment & Land Petition 44 of 2018) [2025] KEELC 104 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a non-party may apply for review of a judgment
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
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.
Whether the Applicant has demonstrable actionable interests in the suit property
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)
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.
Whether the Applicant's issues are barred by res judicata
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
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.
Whether the threshold for review was met
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
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.
Legal principles established
#- 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
#- 1.The Judgment delivered on the 23rd September 2024 and the resultant decree arising therefrom be and are hereby reviewed and set aside
- 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.The Petitioners to file a further amended Petition to embody/include the Applicant as the 10th Respondent
- 4.The Further amended Petition to be filed and served within 14 days from the date of the order
- 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.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.Costs of the Application shall abide the outcome of the Petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.