Stephen Kamau Njoroge (Plaintiff/Respondent) v Paul Mwangi Ngutu & 4 others; Proposed Defendants/Applicants (Applicants)
The bottom line
#The Environment and Land Court dismissed outsiders' attempt to join a concluded land case and overturn its judgment, ruling an existing appeal bars review and no ownership documents proved their claim.
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 Applicants have established and/or satisfied the requisite ingredients to warrant review of the judgment and the consequential decree issued on 10th July 2024
- 2.Whether the Applicants have established and/or demonstrated any actionable interests or stake in the suit to warrant joinder
Key legal issues
#Whether a non-party can apply for review under Order 45 Rule 1
Yes, a non-party may invoke Order 45 Rule 1, but must still satisfy the statutory grounds for review
The court held that Order 45 Rule 1 envisages an aggrieved person whether party or non-party, applying the Court of Appeal decision in Accredo Ag & 3 others v Stefiano Uccelli. However, being a non-party does not dispense with proof of the grounds of review; the applicant must substantiate discovery of new matter, error apparent, or sufficient reason, and show the decision affects his cognizable rights.
Whether the Applicants satisfied the grounds for review
No; additionally an appeal was already lodged, ousting Order 45 Rule 1(a)
The 2nd Defendant annexed a record of appeal to the Court of Appeal and the 2nd and 3rd Defendants had filed a Notice of Appeal, which under Order 42 Rule 6(4) is deemed an appeal. The existence of an appeal removes the matter from Order 45 Rule 1(a). Independently, the Applicants did not substantiate the alleged new and important evidence and produced no certificates of title to demonstrate any cognizable interest.
Whether the Applicants had an actionable stake warranting joinder
No; they exhibited no certificate of title or lease and a finally determined suit cannot admit joinder
The court held that a person seeking joinder must demonstrate an actionable stake or interest that is not remote, preposterous or imaginary. None of the Applicants annexed a certificate of title or lease to evidence ownership of the sub-divisions they claimed. Further, joinder under Order 1 Rule 10(2) is only available in pending proceedings; once judgment has finally determined the rights of the parties, joinder serves no purpose.
Legal principles established
#- A non-party may apply for review under Order 45 Rule 1, but must still prove the statutory grounds and show the decision affects his cognizable rights
- The existence of an appeal against a decree takes the matter outside Order 45 Rule 1(a) - review lies only where no appeal has been preferred
- Joinder of a party under Order 1 Rule 10(2) can only be effected while proceedings are pending, not after final judgment
Court orders
#- 1.The Application dated 24th October 2024 be and is hereby dismissed
- 2.Costs of the Application awarded to the Plaintiff/Respondent and the 1st Defendant/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 45 Rule 1 of the Civil Procedure Rules, 2010 as read with Section 80 of the Civil Procedure Act, Chapter 21, Laws of Kenya (and Order 1 Rule 10(2) for joinder)
Relief refused
#Joinder of the Applicants as 5th, 6th and 7th Defendants
No demonstrable actionable stake or interest in the suit property or suit; joinder can only occur in pending proceedings and the suit stands finally determined
Review/setting aside of the judgment and consequential decree and rehearing de novo
An appeal exists (record of appeal and Notice of Appeal filed to the Court of Appeal), removing the matter from Order 45 Rule 1(a); and the grounds for review were not substantiated
Leave to file a Statement of Defence and Counterclaim
Fell with the dismissal of the review and joinder applications as the application was misconceived and legally untenable
Costs
Costs of the Application awarded to the Plaintiff/Respondent and the 1st Defendant/Respondent
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 Application dated the 24th October 2024 be and is hereby dismissed.
Costs of the Application be and are hereby awarded to the Plaintifi/Respondent and the 1st Defendant/Respondent.
the existence of an appeal to the court of appeal in respect of the impugned Judgment and decree, takes the subject matter out of the purview of the provisions of Order 45 Rule 1 [a] of the Civil Procedure Rules, 2010.
the Applicants herein have failed to meet and/or satisfy the statutory threshold to warrant the grant of an order for review
joinder of the party, in whatever capacity; can only be taken at any stage during the pendency of the suit and not otherwise.
In the absence of a demonstrable stake and/ or actionable interests in the suit property and by extension, the Suit; I am afraid that the Applicants herein have no basis to warrant joinder into the suit.
a Court of Law does not act in vanity or futility.
Issues in the judgment
#The judgment records the application as coming up for hearing on 24th October 2024, the same date it was filed, which is internally inconsistent
The name of the Proposed Defendants/Applicants is never given in the judgment, though paragraph 24 refers to a '2nd Defendant/Respondent' supplementary affidavit and the suit concerns Paul Mwangi Ngutu's title
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Kamau Njoroge (Plaintiff/Respondent) v Paul Mwangi Ngutu & 4 others; Proposed Defendants/Applicants (Applicants)", Case Analysis (2025). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/497/eng@2025-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.