Yawa & 35001 others v Chome (Suing as the administrator of the Estate of the Late Mumba Chome Ngala (Deceased) & 19 others (Civil Application 100 of 2018) [2018] KECA 35 (KLR)
The bottom line
#Kenya's Court of Appeal allowed 35 land claimants to join pending appeals, but only those who personally signed or thumb-printed the authority to sue.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 35 applicants should be joined as interested parties in the appeals against the ELC judgment
- 2.Whether the applicants should be granted leave to file the necessary pleadings in the appeals
- 3.Which of the applicants (and which appeals) the joinder should cover
Key legal issues
#Criteria for joinder of a party to pending proceedings
Joinder should be freely allowed at any stage, subject to three non-exhaustive criteria: desirability of the applicant's presence to resolve the dispute, absence of prejudice, and avoidance of vexatious or convoluted expansion of proceedings.
The court invoked the general principle that joinder, like amendment of pleadings, should be freely allowed at any stage unless it results in prejudice or injustice not compensable in costs, citing the Nderitu Wachira decision. It then set out the Attorney General v Kenya Bureau of Standards criteria as a checklist, applying each to the applicants' claim of long occupation of the suit parcel.
Right to be heard as a precondition for any decision affecting a party
Natural justice requires that a person likely to be adversely affected by a decision be heard before it is made; denying such a hearing is unconstitutional.
Relying on Mbaki & Others v Macharia, the court held that the right to be heard is a valued right and that any decision in the appeal would affect the applicants, who claim occupation of the suit parcel. It reasoned that excluding them would offend all notions of justice and would deprive them of the opportunity to be heard on their claim, contrary to natural justice.
Validity of collective authority in group joinder applications
Joinder is limited to applicants who personally signed or thumb-printed the authority, given the risk of 'professional squatters' fraudulently appearing in land claims.
The 1st respondent had pointed out that not all applicants gave authority to the two movants. The court acknowledged this and, taking judicial notice of 'professional squatters' who unjustly enrich themselves from others' properties, confined joinder to those who consented by signature or thumb print, and directed that they be joined in either of the two pending appeals touching the impugned judgment.
Legal principles established
#- Joinder of a party, like amendment of pleadings, should be freely allowed at any stage of the proceedings provided it causes no uncompensatable prejudice or injustice to the other party.
- An applicant for joinder must show that their presence would enable the court to resolve all matters in dispute, that the joinder will not prejudice the other parties, and that it will not vex the parties or convolute the proceedings.
- A person likely to be adversely affected by a decision must be heard before that decision is made; depriving an interested party of the opportunity to be heard is contrary to the rules of natural justice and unconstitutional.
- Where multiple persons apply to be joined through common representatives, only those who consented by signature or thumb print on the authority may be joined.
Court orders
#- 1.The application dated September 28, 2018 is allowed to the extent set out in the ruling
- 2.The 35 named applicants are joined as interested parties in Civil Appeal Nos 126 & 127 of 2018
- 3.The joined applicants are granted leave to file any necessary pleadings in the said appeals
- 4.Costs of the application to abide the outcome of the said appeals
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC Case No 243 of 2014 (formerly Mombasa ELC No 95 of 2011)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules; application for joinder as interested parties and leave to file pleadings in pending appeals
- Consolidated with
- Civil Appeal No 95 of 2018, Civil Appeal No 18 of 2018
Relief refused
#Joinder and leave for those applicants who did not sign or thumbprint the authority
Only applicants who executed the authority were joined; the court flagged the risk of 'professional squatters' being used to claim interests without genuine occupation
Costs
Costs of the application shall abide by the outcome of Civil Appeal Nos 126 & 127 of 2018
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that the application dated September 28, 2018 is allowed to the extent set out in this ruling. For avoidance of doubt, we issue orders joining the following applicants as interested parties in Civil Appeal Nos 126 &127 of 2018
The said applicants are also granted leave to file any necessary pleadings in the said appeals. Costs of this application shall abide by the outcome of the aforementioned appeals
The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard
Perhaps, this is reason behind the general guiding principle that joinder of a party like amendment of pleadings, should be freely allowed and at any stage of the proceedings, provided that it will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs
Issues in the judgment
#The judgment refers inconsistently to the appeal numbers it concerns, first mentioning Civil Appeal No 95 & 18 of 2018 as the two pending appeals, later directing joinder in Civil Appeal Nos 126 & 127 of 2018.
The size of the applicant group is inconsistently stated - the 1st respondent refers to '35002 applicants' while only 35 applicants are named in the orders.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Yawa & 35001 others v Chome (Suing as the administrator of the Estate of the Late Mumba Chome Ngala (Deceased) & 19 others (Civil Application 100 of 2018) [2018] KECA 35 (KLR)", Case Analysis (2018). Civil Appeal Nos 126 & 127 of 2018 (Application dated September 28, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/35/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.