Republic v Commissioner of Lands & Settlement & 3 others; Samuru Gituro Co-op Society Ltd (Ex parte Applicant); Mwaura & 61 others (Interested Parties) (Environment and Land Judicial Review Case 1 of 2022) [2025] KEELC 6280 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a judgment that cancelled land titles without ever hearing the title holders.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to entertain post-judgment applications seeking to set aside a judgment in judicial review proceedings
The court has jurisdiction; setting aside a regular judgment under Order 10 and the inherent jurisdiction is not sitting on appeal over its own decision.
The Respondent argued that section 8(3) and (5) of the Law Reform Act barred the applications since the remedy is appeal to the Court of Appeal. The court held that under natural justice a court may not condemn a party unheard, and the Civil Procedure Rules expressly permit setting aside judgments. Because the Applicants were never parties and had no avenue of appeal, the court could exercise its discretion to set aside without becoming an appellate forum over itself.
Whether the Applicants qualify for joinder as interested parties
Yes. They demonstrated a proximate stake - titles to and possession of portions of LR 10743 - and prejudice from non-joinder, satisfying the Muruatetu criteria.
Applying the Supreme Court's tests in Trusted Society of Human Rights Alliance v Mumo Matemo and Muruatetu, the court found the Applicants had attached title deeds, most were in possession and had developed their portions, and the Respondent did not deny occupation or title. Their interests would be directly affected by execution of the decree cancelling the deed plans, warranting joinder even though the matter was already decided.
Whether the judgment of 14th November 2023 should be set aside
Yes. The orders directly affect parties who were never heard; the Respondent ought to have joined them when setting the matter down for hearing in 2023.
Although the orders were not directed at the Applicants, implementing them would cancel their titles. Most of their titles were issued after the motion was filed, so the Respondent had no cause of action against them at filing, but the Respondent knew of some of their activities and should have notified them before the 2023 hearing. Prejudice to the Respondent can be compensated by half costs. The merit of the Applicants' defences is left to the inter partes hearing.
Legal principles established
#- A court exercising its discretion to set aside a regular judgment does not sit on appeal over its own judgment; natural justice forbids condemning a party unheard.
- A judgment whose implementation directly cancels the titles of persons who were never heard ought to be set aside to allow them to be heard.
Court orders
#- 1.All the applications allowed; the six notices of motion seeking joinder and setting aside are merited and are hereby allowed
- 2.The judgment of this court delivered on 14th November 2023 is set aside
- 3.The Interested Parties are granted 14 days each to file their respective pleadings in response to the notice of motion application dated 12th January 2009
- 4.An order of half costs on each of the applications to the Respondent
- Jurisdiction invoked
- Articles 10 and 159 of the Constitution; sections 18 and 19 of the Environment and Land Court Act; sections 1A, 1B and 3A of the Civil Procedure Act and Orders 10, 45, 50, 51 and 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Commissioner of Lands & Settlement & 3 others; Samuru Gituro Co-op Society Ltd (Ex parte Applicant); Mwaura & 61 others (Interested Parties) (Environment and Land Judicial Review Case 1 of 2022) [2025] KEELC 6280 (KLR)", Case Analysis (2025). Milimani ELC JR No. 1 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6280/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.