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ELCOtherNot stated in the judgment (Environment and Land Court, Mombasa; related suit referenced as RMCC No. 78 of 2020)· [2025] KEELC 1225 (KLR)

Osoro v Nguzo & 5 others; Kadhi’s Court, Mombasa (Interested Party) (Environment & Land Case 412 of 2017) [2025] KEELC 1225 (KLR)

Environment and Land Court
12 March 2025
3,710 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Mombasa court scrapped all land consents made with deceased parties, restarting the whole case and freezing the property.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Mombasa (S. M. Kibunja, J., delivered virtually on 12th March 2025) determined a notice of motion dated 2nd March 2023 by the defendants seeking joinder/substitution of Mwinyi Hussein Jumaa and Fatuma Hussein Jumaa as defendants in place of the deceased 1st and 2nd defendants, review of the order of 19th January 2023, and setting aside of orders arising from representation by the firm of Omondi Waweru & Company Advocates. The application was supported by an affidavit of Mwalimu Shaibu Juma, the 3rd defendant, and opposed by the plaintiff and by M. N. Waweru Advocate. The court framed five issues, including who the applicants were, whether the threshold for joinder or substitution was met, and whether there was basis for review. It held the substitution application was a non-starter: it should have been brought under Order 24 Rule 4(1), the proposed substitutes gave no deposition or instructions, no notice of change of advocates was filed for them, and the suit had abated against the deceased defendants - the 2nd defendant having died before the 2017 suit was filed. Joinder after judgment was theoretically possible per JMK v MWM (citing Tang Gas Distributors), but the court was not properly moved. Noting conflicting consents, withdrawals and resort to the Kadhi's court for vesting orders over the suit property, the court struck out the motion but, on its own motion, vacated all orders and consents conferring rights over plot 382/1/MN CR. 2397/1 and its sixteen subdivisions, issued an inhibition order under section 68 of the Land Registration Act pending trial, fixed a trial conference after sixty days, and directed that parties and counsel bear their own costs.

Key legal issues

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01

Who are the applicants and whether substitution of deceased defendants was properly moved

Holding

The application for substitution was a non-starter: it ought to have been brought under Order 24 Rule 4(1); no deposition or notice of change of advocates supported the proposed substitutes, and the suit had abated against the deceased defendants.

Reasoning

The supporting affidavit was deposed solely by Mwalimu Shaibu Juma, the 3rd defendant, with no deposition by Mwinyi Hussein Jumaa or Fatuma Hussein Jumaa expressing intent to be joined. No notice of change of advocates was filed for them. The 2nd defendant died before the suit was filed in 2017, rendering the suit against her null and void ab initio; the application for substitution was filed years after the 1st defendant's death without prior leave.

p. 5
02

Whether joinder could still occur after judgment

Holding

Joinder under Order 1 Rule 10 should occur during the subsistence of the suit, though it may be done even after judgment per superior court authority; had the court been moved properly for joinder (not substitution), it would have considered the request subject to the threshold.

Reasoning

The court cited JMK v MWM & another [2015] KECA 524 (KLR), which approved Tang Gas Distributors Ltd v Said & Others [2014] EA 448, holding that the power to add a party can be exercised at any stage, even after judgment where damages are yet to be assessed, and even at the appellate stage, but not where the suit is finally disposed of.

p. 5
03

Validity of the consents and orders entered concerning deceased defendants and the suit property

Holding

The consent of 19th January 2023 affected only the 3rd, 4th and 5th defendants; the plaintiff could not enter a consent with the deceased 1st and 2nd defendants having withdrawn the suit against them; the conduct of all parties and counsel was wanting and the consents were vacated suo motu.

Reasoning

The court found a 'circus' of conflicting consents: the 28th May 2020 withdrawal, the 26th May 2021 consent on fees, and Oddiaga's subsequent resort to the Kadhi's court for vesting orders before the bill was taxed. Invoking sections 1A, 1B, 3A of the Civil Procedure Act, section 19(1) of the ELC Act and Article 159(2)(b) & (d), the court vacated all consents conferring rights over the suit property and directed a hearing de novo, with an inhibition order to preserve the property.

p. 6
04

Costs

Holding

Though costs ordinarily follow the event under section 27 of the Civil Procedure Act, the court directed that parties and counsel bear their own costs due to the apparent deceit by all.

Reasoning

The court applied section 27 of the Civil Procedure Act (costs follow the event unless directed otherwise for good cause) and found good cause in the conduct of all parties and counsel, finding it fair and just that each bear their own costs.

p. 6

Legal principles established

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  • Substitution of a deceased defendant must be brought under Order 24 Rule 4(1) of the Civil Procedure Rules; where no application is made within one year the suit abates against the deceased defendant.
  • Substitution and addition of parties under Order 1 Rule 10 should be done during the subsistence of the suit, though superior courts have held joinder may occur even after judgment where the suit has not been finally disposed of.
  • A party who has withdrawn a suit against a deceased defendant cannot purport to enter into a consent with the deceased.
  • The court may exercise its inherent powers to vacate orders and consents obtained through deceit and direct a hearing de novo in the interest of justice without undue technicality.

Court orders

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  1. 1.The notice of motion dated 2nd March 2023 is without merit and is struck out.
  2. 2.All orders and/or consents that led to the suit being marked settled or conferred any legal rights or interests over plot 382/1/MN CR. 2397/1 and subdivisions 20440/1/MN CR.60496 to 20455/1/MN CR. 60511 be vacated and/or set aside to allow the suit be heard afresh/de novo.
  3. 3.An inhibition order under section 68 of the Land Registration Act No. 3 of 2012 is issued to be registered by the Land Registrar, Mombasa, against the suit property and/or subdivisions thereof, pending hearing and determination of the suit.
  4. 4.A date for trial conference and further directions to be fixed after sixty (60) days to allow parties and counsel to consult.
  5. 5.Counsel and parties to bear their own costs.

Authorities

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Legislation

  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B, 3A, 63(c), 80, 27
  • Civil Procedure RulesOrder 1 Rule 3, Order 1 Rule 10, Order 24 Rule 4(1) & (3), Order 45, Order 51 Rule 1
  • Environment and Land Court Act No. 19 of 2011Section 19(1)
  • Constitution of Kenya 2010Article 159(2)(b) & (d)
  • Land Registration Act No. 3 of 2012Section 68

Cases cited (2)

  • JMK versus MWM & another
    [2015] KECA 524 (KLR)
  • TANG GAS DISTRIBUTORS LTD versus SAID & OTHERS
    [2014] EA 448
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act, section 19(1) of the Environment and Land Court Act No. 19 of 2011, and Article 159(2)(b) & (d) of the Constitution 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, "Osoro v Nguzo & 5 others; Kadhi’s Court, Mombasa (Interested Party) (Environment & Land Case 412 of 2017) [2025] KEELC 1225 (KLR)", Case Analysis (2025). Not stated in the judgment (Environment and Land Court, Mombasa; related suit referenced as RMCC No. 78 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1225/eng@2025-03-12

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