Tarus & 51 others v Attorney General & 4 others; Kebene & 16 others (Interested Parties) (Constitutional Petition 8 of 2020) [2025] KEELC 6104 (KLR)

Anne Kimitei was the sole administrator of the Nyongio Kimitei estate; on her death the grant became useless and inoperative under Section 76(e) of the Law of Succession Act. No application for revocation and fresh grant was made. The limited grant ad litem issued to Korir in March 2023 relates only to Anne Kimitei's estate. He therefore cannot prosecute applications or issue eviction notices for the 5th Respondent.

Order 1 Rule 10 permits joinder at any stage, but post-judgment joinder is exceptional. Here the eviction notice of 28th February 2025 issued after judgment would adversely affect the applicants who were never heard. Their prayers arise from post-judgment events, so the functus officio doctrine does not bar the joinder, which enables them to protect their properties and seek review.

Review under Order 45 Rule 1 requires error apparent on the face of the record, new evidence or sufficient reason. The AG argued the judge's observation declaring the 5th Respondent owner was obiter and erroneous. The court held that where a judge made findings on the evidence in the exercise of discretion, an alleged error is appealable, and review would amount to the court sitting on appeal over its own judgment, which it has no jurisdiction to do.

The dismissal of the Petition was a negative order incapable of being stayed. However, the 5th Respondent issued an eviction notice under a misconception that the judgment contained an eviction order. If eviction proceeded, the appeals would be rendered nugatory. To avert that, a stay of execution of the judgment and consequential orders pending the intended appeal was warranted.

The court exercised its discretion under Section 27 of the Civil Procedure Act, departing from the general rule that costs follow the event because all four applications arose out of what appeared to be a lack of comprehension of the court's judgment, justifying no award of costs to any applicant.