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Court of AppealPartially AllowedCivil Appeal No. 172 of 2006 (as consolidated with Civil Appeal No. 21 of 2014)

Joseph Kamau Musa & others v Ereri Company Limited & others [2017] KECA 577 (KLR)

Court of Appeal of Kenya
24 March 2017
2,881 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed people claiming shares in a land-buying company to join a land appeal, but excluded deceased and non-consenting persons.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Azangalala, Sichale and ole Kantai, JJ.A.) on three applications for joinder as interested parties in consolidated appeals concerning land of Ereri Company Limited, a land-buying company. Appeal No. 172 of 2006 challenges a 1997 High Court decision (Mbito, J.) dismissing shareholder suits on Foss v Harbottle principles, and Appeal No. 21 of 2014 challenges a 2013 High Court judicial review decision (H. A. Omondi, J.) dismissing certiorari, mandamus and prohibition against the Chief Land Registrar's validation of title deeds. After the court directed advertisement of the appeals, three groups applied to join: 155 alleged original shareholders; Cornerstone Preparatory Association, a purchaser of Longonot/Kijabe Block 1/17; and the Kairu beneficiaries of a deceased original shareholder. The court first addressed locus standi as a jurisdictional issue, applying its own decision in Kakuta Maimai Hamisi and the Supreme Court's Mumo Matemu ruling. It held that applicants claiming shares entitling them to Ereri Company's land qualify as aggrieved persons directly affected by the appeals, since standing to join an appeal is not confined to parties below (Ahn v Openda; Onjula Enterprises v Sumaria). However, deceased persons without appointed legal representatives, and persons who did not authorise the application, cannot be joined, as no constitutional provision can drag an unwilling person into proceedings. The joinder applications were allowed save for those two categories; costs were made costs in the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants seeking joinder have the requisite locus standi to file the applications
  2. 2.Whether the applicants are persons directly affected by, or aggrieved by, the consolidated appeals
  3. 3.Whether deceased persons and persons who have not authorised the application can be joined to the appeals

Key legal issues

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01

Whether applicants claiming an interest in land allotted by a land-buying company are aggrieved parties entitled to join an appeal

Holding

Applicants claiming shares that entitle them to land of Ereri Company qualify as aggrieved persons directly affected by the consolidated appeals and may be joined

Reasoning

The court applied Ahn v Openda and Onjula Enterprises v Sumaria to hold that persons directly affected by an appeal need not have been parties below. The applicants claim interests in the same land as Ereri Company through shareholding in a land-buying company, mirroring the plaintiffs' claims in the suits below, so they may be aggrieved. Whether their interests are adequately represented is a question for the appeal proper, not the joinder application.

p. 6
02

Whether deceased and non-consenting persons may be joined

Holding

Deceased persons without duly appointed legal representatives, and persons who have not authorised the application, cannot be joined

Reasoning

The court held that however liberally Article 159(2)(d) is interpreted, persons who are deceased or who do not wish to participate cannot be joined. There being no allegation of constitutional contravention or breach of the Bill of Rights, the applicants could not rely on Articles 22 and 258 to enlarge standing for these categories.

p. 3

Legal principles established

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  • Locus standi is the right to be heard and is a jurisdictional issue
  • A party who took no part in proceedings below may nevertheless be directly affected by an appeal, and persons directly affected need not have been parties below
  • Article 159(2)(d) cannot cure an absence of standing, and no constitutional provision can force an unwilling person into litigation

Court orders

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  1. 1.Deceased persons and persons who have not given their authority to lodge the application cannot be joined to the appeals
  2. 2.Save for deceased persons and persons who have not given authority to join, the applications to join the appeals are allowed
  3. 3.Costs shall be in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3746 of 1988 (consolidated with H.C.C.C. No. 3200 of 1990); and Judicial Review Case No. 76 of 2011 (Nakuru)
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act; Rule 77(1) of the Court of Appeal Rules; Article 159(2) of the Constitution
Consolidated with
Civil Appeal No. 21 of 2014 (Ereri Company Limited v Commissioner of Lands & 110 Others)

Relief refused

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Joinder of deceased persons named among the 155 applicants

Deceased persons cannot be joined unless legal representatives have been duly appointed for their estates

p. 3

Joinder of persons who did not authorise the filing of the application

No constitutional provision can compel a person to participate in proceedings they do not wish to join

p. 4

Costs

Costs shall be in the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end, save for deceased persons and persons who have not given authority to join, the applications to join the appeals are allowed. It is so ordered.
p. 6Final orders - joinder applications
no Constitutional provision can drag any one into proceedings they do not wish to participate in.
p. 4Joinder of non-consenting persons
a party who has taken no part in the lower court's proceedings may nevertheless, be a person directly affected by the appeal.
p. 5Standing of non-parties to join an appeal
Costs shall be in the appeal.
p. 6Costs order

Issues in the judgment

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minor

Caption states Civil Appeal No. 172 of 2006 but the body of the ruling refers to 'Appeal No. 72 of 2006'; the reference appears to be a typographical error for Appeal No. 172 of 2006

minor

The judgment refers to the original land title as both L.R. No. 8022/R / LR No. 8022/1 and L.R. 8622 in different passages

minor

The caption reads 'An appeal against from the Judgment' - a grammatical error in the original

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Kamau Musa & others v Ereri Company Limited & others [2017] KECA 577 (KLR)", Case Analysis (2017). Civil Appeal No. 172 of 2006 (as consolidated with Civil Appeal No. 21 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/577/eng@2017-03-24

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