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ELCDismissedNot stated on the face of the judgment

Stephen Kamau Njoroge (Plaintiff/Respondent) v Paul Mwangi Ngutu & 4 others; Proposed Defendants/Applicants (Applicants)

Environment and Land Court
21 January 2025
3,668 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Proposed Defendants/Applicants, who claimed to own sub-divisions arising from L.R No. Nairobi Block 107/1118, moved the court by application dated 24th October 2024 seeking to be joined as 5th, 6th and 7th Defendants, to have the judgment delivered on 10th July 2024 and its consequential decree reviewed and set aside, and for leave to file a defence and counterclaim. They invoked Order 45 Rule 1 of the Civil Procedure Rules, 2010 read with Section 80 of the Civil Procedure Act. The Plaintiff/Respondent opposed the application as an afterthought and abuse of process, contending the Applicants had no actionable stake in the suit property. The 1st Defendant/Respondent filed grounds of opposition, arguing the application was premature and did not meet the statutory threshold for review. The court framed two issues: whether the grounds for review were established, and whether the Applicants had an actionable stake warranting joinder. It accepted that a non-party may apply for review under Order 45 Rule 1, following Accredo Ag v Stefiano Uccelli. However, it found an appeal was already pending before the Court of Appeal (a record of appeal having been annexed and a Notice of Appeal filed), which took the matter outside Order 45 Rule 1(a). The Applicants also failed to substantiate the alleged new and important evidence and produced no certificates of title evidencing their claimed ownership. On joinder, applying Muruatetu and JMK v MWM, the court held there was no demonstrable actionable stake, and joinder cannot occur in a finally determined suit. The application was dismissed with costs to the Plaintiff/Respondent and 1st Defendant/Respondent.

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 have established and/or satisfied the requisite ingredients to warrant review of the judgment and the consequential decree issued on 10th July 2024
  2. 2.Whether the Applicants have established and/or demonstrated any actionable interests or stake in the suit to warrant joinder

Key legal issues

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01

Whether a non-party can apply for review under Order 45 Rule 1

Holding

Yes, a non-party may invoke Order 45 Rule 1, but must still satisfy the statutory grounds for review

Reasoning

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.

p. 4
02

Whether the Applicants satisfied the grounds for review

Holding

No; additionally an appeal was already lodged, ousting Order 45 Rule 1(a)

Reasoning

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.

p. 5
03

Whether the Applicants had an actionable stake warranting joinder

Holding

No; they exhibited no certificate of title or lease and a finally determined suit cannot admit joinder

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The Application dated 24th October 2024 be and is hereby dismissed
  2. 2.Costs of the Application awarded to the Plaintiff/Respondent and the 1st 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
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

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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

p. 7

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

p. 5

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

p. 7

Costs

Costs of the Application awarded to the Plaintiff/Respondent and the 1st 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.

The Application dated the 24th October 2024 be and is hereby dismissed.
p. 7final orders - dismissal
Costs of the Application be and are hereby awarded to the Plaintifi/Respondent and the 1st Defendant/Respondent.
p. 8final orders - costs
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.
p. 5review barred where appeal exists
the Applicants herein have failed to meet and/or satisfy the statutory threshold to warrant the grant of an order for review
p. 6review grounds not satisfied
joinder of the party, in whatever capacity; can only be taken at any stage during the pendency of the suit and not otherwise.
p. 7joinder only in pending proceedings
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.
p. 6no actionable stake - joinder refused
a Court of Law does not act in vanity or futility.
p. 7court will not order futile joinder

Issues in the judgment

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minor

The judgment records the application as coming up for hearing on 24th October 2024, the same date it was filed, which is internally inconsistent

minor

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

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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, "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.