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Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment

Benjamin Barasa v Defendant/Respondent

Environment and Land Court
11 April 2024
817 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled you cannot revive a concluded land case by adding new parties through an improper filing — such attempts are an abuse of process and attract costs.

What this practically means

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Executive summary

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The applicant, Benjamin Barasa, moved the Environment and Land Court at Bungoma by a proposed Amended Originating Summons dated 21st August 2023, seeking answers to numerous questions and leave for Fridah Nafula Yusto and Louis Wanyela Mang'eni to be joined as interested parties, and for the applicant to act for them under a power of attorney. The application was canvassed by written submissions pursuant to consent directions of 30th November 2023; the applicant filed submissions while the respondent filed only grounds of opposition dated 20th November 2023 and no submissions. The court noted the undisputed background: the suit, commenced by plaint dated 1st August 2012, was heard and determined by a judgment of 13th May 2014 allowing the plaintiff's claim, ordering refund of Kshs. 1,385,000 plus costs and interest, and subsequent execution orders including one of 12th June 2017 allowing sale of land parcel Ndivisi/Khalumuli/2645. The court held that the Amended Originating Summons/Motion lacked a supporting affidavit and grounds, was disguised as an application, and that an Originating Motion is not a recognised mode of commencing proceedings, rendering it an outright abuse of the court process. Interested parties cannot be joined to a concluded suit, and the applicant, described as a busy body, lacked locus standi to act for them. The application was dismissed with costs to the defendant/Respondent on 11th April 2024.

Questions the Court framed

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

  1. 1.Whether the proposed Amended Originating Summons/Motion dated 21st August 2023 is properly before the court in a suit already heard and determined
  2. 2.Whether Fridah Nafula Yusto and Louis Wanyela Mang'eni should be joined as interested parties
  3. 3.Whether the applicant has locus standi to act for the proposed interested parties under a power of attorney

Key legal issues

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01

Abuse of court process by filing an improperly constituted application in a concluded suit

Holding

The Amended Originating Motion disguised as an application was an outright abuse of the court process and was dismissed

Reasoning

The suit had been commenced by plaint, heard and determined in a judgment of 13th May 2014, with a decree of Kshs. 1,385,000 plus costs and interest, and execution orders issued in 2017. The applicant purported to file an Amended Originating Summons/Motion without a supporting affidavit, without grounds, and without an affidavit explaining the annexed documents. An Originating Motion is not provided for in the rules as a mode of commencing such proceedings, and new parties cannot be bolted onto a concluded suit.

p. 2
02

Locus standi of the applicant to litigate on behalf of the proposed interested parties

Holding

The applicant lacked locus standi and was a busy body

Reasoning

The applicant claimed the proposed interested parties approached him after practising advocates failed, and he relied on Order 1 Rule 8 & 13, Order 9 Rule 2(a), Order 32 Rules 3 & 7 CPR, Article 50(7) of the Constitution and provisions of the Succession Act. The court found that in a matter heard and concluded, the applicant had no standing to act for the proposed interested parties, whose remedy lay elsewhere.

p. 3

Legal principles established

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  • An Originating Motion is not a recognised mode of commencing suits under the Civil Procedure Rules; a suit may be commenced by plaint, originating summons, notice of motion or petition
  • Interested parties cannot be joined to a suit that has already been heard and determined

Court orders

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  1. 1.The Amended Originating Motion dated 21st August 2023 is dismissed
  2. 2.Costs to the defendant/Respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land matters

Relief refused

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Joinder of Fridah Nafula Yusto and Louis Wanyela Mang'eni as interested parties

Interested parties cannot be added to a suit already heard and determined; their remedy lies elsewhere

p. 2

Leave for the applicant to act for the proposed interested parties under a power of attorney

The applicant is a busy body without locus standi in a concluded matter

p. 3

Costs

Dismissed with costs to the defendant/Respondent

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.

An application by way of Originating Motion is not provided for under our Rules of procedure and this application therefore is an outright abuse of the court process.
p. 2Abuse of process - improper mode of commencing proceedings
The proposed 2nd and 3rd interested parties cannot be added to a suit that has been heard and determined.
p. 2Joinder of interested parties in concluded suits
The upshot of my finding is that the Amended Originating Motion dated 21st August 2023 is devoid of merit and the same is hereby dismissed with costs to the defendant/Respondent.
p. 3Final orders - dismissal with costs

Issues in the judgment

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minor

The judgment alternately describes the application as an 'Amended Originating Summons' and an 'Amended Originating Motion'

minor

Case number and parties' full names are not stated in the judgment; the defendant is referred to only as 'Defendant/Respondent'

minor

Land parcel references are inconsistent: the decree-related parcels are Ndivisi/Muchi/2737, Ndivisi/Muchi/2645 and Ndivisi/Khalumuli/4798, while the court's recital of the execution order refers to parcel No. Ndivisi/Khalumuli/2645

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, "Benjamin Barasa v Defendant/Respondent", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3256/eng@2024-04-11

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