Ruth & 2 others v Namunyu; Chebet (Intended Interested Party) (Environment & Land Case 032 of 2018) [2025] KEELC 1075 (KLR)
The bottom line
#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 applicant has met the threshold for joinder to these proceedings
- 2.Whether the applicant deserves orders for review/setting aside orders of 3rd December, 2020
- 3.Whether orders of inhibition should issue in regard to titles of parcels Kakamega/Lugari/1772 and 1774 pending determination of this matter
- 4.Whether the applicant has met the threshold for grant of orders of stay of proceedings in Kakamega CMC ELC Case No. E075 of 2023 pending the hearing and determination of this suit
Key legal issues
#Joinder of a necessary party
The applicant, a purchaser in occupation of the suit parcels whose rights are directly affected by the consent, ought to be joined as a defendant rather than a mere interested party.
Order 1 Rule 10(2) permits addition of a person whose presence is necessary to effectually and completely adjudicate all questions. The applicant alleged purchase and 17 years' open occupation; the plaintiffs did not deny these facts and indeed sought her eviction in the related suit founded on the consent. Her presence is necessary for complete determination, and she takes the position of a primary party.
Review and setting aside of consent orders
Sufficient cause existed to review and set aside the orders of 3rd December, 2020 because the consent was made without involving the applicant whose occupation it affected.
Section 80 of the Civil Procedure Act and Order 45 Rule 1 govern review. A consent judgment is contractual and binds only the parties to it. The applicant was not a party yet was directly affected; the defendant did not oppose. Her non-involvement and the collusion alleged constituted sufficient reason for review, notwithstanding that proof of her claim awaits trial.
Orders of inhibition
Inhibition orders were granted to preserve the status quo over parcels 1772 and 1774 pending trial.
Section 68 of the Land Registration Act empowers the court to inhibit dealings with registered land. Inhibitions are akin to temporary injunctions judged by the Giella v Cassman Brown principles. The 1st plaintiff, as registered proprietor, could deal with the land to the applicant's detriment; maintaining the status quo preserves the substratum of the case.
Stay of proceedings in the eviction suit
Stay of Kakamega CMC ELC No. E075 of 2023 was granted because that suit is predicated on the now-contested consent.
Although stay of proceedings is a grave judicial action with a high and stringent test, the eviction suit is founded on the consent now set aside, which was made without involving the applicant in occupation. Proceeding with eviction while the basis of the consent is contested in this suit would be an injustice; the applicant should be heard here first.
Legal principles established
#- A consent judgment binds only the parties to it; parties cannot lawfully agree to an outcome affecting a non-party.
- A person in occupation claiming under purchase and continuous occupation whose rights are affected by a consent must be given an opportunity to be heard in the forum in which her claim was affected.
- The test for stay of proceedings is high and stringent and distinct from stay of execution.
Court orders
#- 1.The applicant, Everline Ilamenya Chebet is joined to the proceedings as the 2nd defendant
- 2.The orders of the court made on 3rd December, 2020 are set aside, with the consequence that the consent dated 23rd October 2020 is no longer judgment of the court
- 3.Orders of inhibition inhibiting registration of any dealings in parcel Number Kakamega/Lugari/1772 and parcel Number Kakamega/Lugari/1774 pending hearing and determination of the suit
- 4.Proceedings in Kakamega CMC ELC Case No. E075 of 2023 stayed pending hearing and determination of this suit
- 5.The 2nd defendant granted leave to file and serve her statement of defence and counterclaim, witness statements and documents within 14 days
- 6.Costs of the application borne by the plaintiffs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 68 Land Registration Act; Section 80 Civil Procedure Act and Order 45 Rule 1 Civil Procedure Rules (review); Order 1 Rule 10(2) Civil Procedure Rules (joinder); Order 40 Rule 1 (injunction/inhibition)
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.
Parties cannot lawfully agree to an outcome that afiects another person not party to their agreement.
Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation.
The orders of this court made on 3rd December, 2020 are hereby set aside with the consequence that the consent dated 23rd October 2020 is no longer judgment of this court.
Proceedings in respect of Kakamega CMC ELC Case No. E075 of 2023 are hereby stayed pending hearing and determination of this suit.
The applicant, Everline Ilamenya Chebet is hereby joined to these proceedings as the 2nd defendant.
Issues in the judgment
#The applicant's name is inconsistently spelled in the judgment ('Everlyne Ilamenya Chebet' in the affidavit reference versus 'Everline Ilamenya Chebet' in the final orders).
The judgment's own record of the consent order lists parcel 1773 among the parcels cancelled and registered to the 1st plaintiff, yet the dispute and inhibition orders concern only parcels 1772 and 1774.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruth & 2 others v Namunyu; Chebet (Intended Interested Party) (Environment & Land Case 032 of 2018) [2025] KEELC 1075 (KLR)", Case Analysis (2025). Notice of Motion dated 12th April, 2023 (Kakamega ELC suit; arises from consent adopted 3rd December, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1075/eng@2025-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.