https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3113

Abura & another (Suing as the Administrators of the Estate of Isabella Akumu Abura (Deceased)) v Usonik Farm Purchase Co-operative Society Limited; Co-operative Bank of Kenya Limited (Garnishee); Muge (Grievant); Commissioner for Co-operative Development (Proposed Interested Party) (Environment and Land Case 28 of 2014) [2026] KEELC 3113 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3113 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case 28 of 2014 SO Okong'o, J May 21, 2026 Between Joan Abura 1st Plaintiff Lynette Dawa 2nd Plaintiff Suing as the Administrators of the Estate of Isabella Akumu Abura (Deceased) and Usonik Farm Purchase Co-operative Society Limited Defendant and Co-operative Bank of Kenya Limited Garnishee and Benjamin Kibet Muge Grievant and Commissioner for Co-operative Development Proposed Interested Party Ruling Background 1.The full facts of this suit are set out in the judgment of this court delivered on 9th December 2024. In summary, the Plaintiffs brought this suit as the administrators of the estate of Isabella Akumu Abura, deceased (the deceased). The Plaintiffs averred that the deceased owned all that parcel of land known as L.R No. 6015/3 (the suit property), which formed part of her estate. The Plaintiffs averred that on or about 5th April 2012, the Agricultural Finance Corporation (AFC), to which the suit property was charged to secure a loan, served the then administrator of the estate of the deceased with a statutory notice of its intention to sell the suit property as the estate was heavily indebted to it and the debt had been outstanding for a long time. The Plaintiffs averred that the said administrator of the estate of the deceased, with the consent of the rest of the estate's beneficiaries, decided to sell a portion of the suit property measuring approximately 500 acres to offset the debt from the sale proceeds and preserve the interest of the estate in the property. 2.The Plaintiffs averred that the said administrator of the estate got a suitable buyer who was willing, ready and able to pay the purchase price of Kshs. 80,000,000/- and entered into a sale agreement with it. The Plaintiffs averred that the sale transaction proceeded smoothly and that the purchaser made a partial payment, which was used to offset the estate's debt to AFC. The Plaintiffs averred that after settling AFC’s debt, the original title to the suit property was released to the estate of the deceased. The Plaintiffs averred that on or about 7th November 2013, the Defendant through its advocates demanded that the Plaintiffs rescind the sale transaction with the said purchaser which was due for completion claiming that the late Jacob Abura who was then one of the administrators of the estate of the deceased had before his death offered to sell to the Defendant the said portion of the suit property measuring 500 acres and that the Defendant had already made a down payment of Kshs 500,000/- to him. The Plaintiffs averred that the Defendant furnished them with no document to support its claim. 3.The Plaintiffs averred that the Defendant, by itself, its agents and/ or servants entered the suit property, erected informal structures thereon and leased parts of the same to third parties, thereby frustrating the Plaintiffs' efforts to complete the sale agreement they had entered into in respect of the said portion of the suit property measuring 500 acres. The Plaintiffs averred that heavily armed people thereafter invaded the suit property and threatened to harm any person working on the suit property. The Plaintiffs averred that as a result of this development, all activities on the suit property, including farming, ceased since the workers feared for their lives. 4.The Plaintiffs averred that the said actions by the Defendant, its agents, employees or persons acting under its direction amounted to trespass on the suit property. The Plaintiffs prayed for judgment against the Defendant for;a.A permanent injunction stopping the invasion and erection of structures on the suit property;b.An order compelling the Defendant to demolish the illegal structures erected on the suit property;c.An order compelling the trespassers on the suit property to vacate the property;d.General damages for the delay occasioned in completing the sale transaction;e.General damages for trespass to property;f.Mense profits for the illegal occupation and use of the property since 2013 to the time of their eviction;g.Cost of the suit and interest at court rates. 5.The Defendant entered an appearance and filed a statement of defence on 22nd July 2014 to the original plaint. The Defendant averred that Jack Abura (aka Jacob Abura) (deceased), while still an administrator of the estate of Isabella Akumu Abura, deceased, made an offer to the Defendant to sell to it a portion of the suit property measuring 500 acres at a price of Kshs. 70,000/- per acre, which the Defendant accepted. The Defendant averred that it made a down payment of Kshs. 500,000/- to the said Jack Abura. The Defendant averred that the sale agreement was to be formally reduced to writing on 4th October 2007 upon the Defendant paying off the loan arrears due from the estate of the deceased to AFC, which stood at Kshs. 9,000,000/-. The Defendant averred that the said Jack Abura, unfortunately, died on 1st October 2007, before the sale transaction was formalised and completed. The Defendant averred that the siblings of Jack Abura, including the Plaintiffs, were aware of the said agreement and granted the Defendant's members free and uninterrupted occupation of the disputed portion of the suit property on which the said members had been cultivating sugarcane for over 7 years since the death of Jack Abura. The Defendant averred that the Plaintiffs were estopped from feigning ignorance of the said agreement with Jack Abura. 6.The Defendant denied that its members had invaded the suit property or erected illegal structures thereon. The Defendant averred that its members were lawfully occupying and using the portion of the suit property measuring 500 acres, courtesy of the valid sale agreement the Defendant entered into with the Plaintiffs’ predecessor, whose action was ratified by the Plaintiffs and their siblings, who allowed the Defendant free use and occupation of the property pending the completion of the said sale agreement. The Defendant averred that the Plaintiffs engaged in the sale of the said portion of the suit property to a third party while well aware of the existing agreement for sale between the Defendant and Jack Abura. 7.After hearing the parties and their witnesses, the court was not convinced that the Defendant had purchased a portion of the suit property measuring 500 acres and had made a partial payment for it. The court was also not persuaded that the Defendant had been permitted to enter and occupy the suit property. The court found that the Defendant's members invaded the suit property and occupied it without the Plaintiffs’ permission, and as such, they were trespassers on the suit property. In its judgment delivered on 9th December 2024, the court entered judgment for the Plaintiffs against the Defendant for;“1.A permanent injunction restraining the Defendant, its members, servants or agents from entering, occupying and erecting structures on all that parcel of land known as L.R No. 6015/3.2.The Defendant, its members, servants or agents shall vacate and hand over possession of the portion of all that parcel of land known as L.R No. 6015/3 occupied by them within 60 days from the date hereof in default of which the Plaintiffs shall be at liberty to apply for warrants for their forceful eviction from the property.3.Kshs. 10,000,000/- being general damages for trespass.4.Kshs. 20,000,000/- being mesne profits.5.Costs of the suit.” 8.The Defendant was aggrieved by the said judgment and filed a Notice of Appeal dated 18th December 2024. The Defendant applied for a stay of execution of the said judgment pending appeal. The Defendant was granted a temporary stay of execution on 18th February 2025, on condition that the Defendant deposited a sum of Kshs. 30,000,000/- in court as security within 14 days of the order. The Defendant failed to comply with the condition imposed by the court, and the temporary stay lapsed. The Plaintiffs/decree holders thereafter applied for execution of the decree. The court issued warrants for the Defendant's eviction from the suit property. The monies held in the Defendant’s account at Co-operative Bank of Kenya (the Garnishee) were also attached and released to the Plaintiffs in satisfaction of the judgment debt after the garnishee order nisi was made absolute on 29th May 2025. The application before the court 9.What is now before the court for determination is the application dated 16th April 2025 brought by one Benjamin Kibet Muge, who has described himself as “grievant”. In the application that has been brought under sections 3A, 34, and 80 of the Civil Procedure Act, Chapter 21 Laws of Kenya and Order 45 rule 1 of the Civil Procedure Rules and sections 36, 42 and 49 of the Co-operative Societies Act, Chapter 490 Laws of Kenya, the Applicant has sought the following main orders:1.That the applicant and the Commissioner for Co-operative Development be joined in the suit as “grievant” and interested party, respectively;2.That pending the hearing and determination of the application inter partes, there shall be a stay of the garnishee proceedings, and execution of the garnishee order nisi and /or absolute made herein;3.That the judgment and decree of the court issued herein be reviewed for sufficient cause; and4.That the cost of the application be paid to the Applicant. 10.The application, which was supported by the affidavit of the Applicant, Benjamin Kibet Muge, was brought on several grounds. The Applicant averred that he was a member of the Defendant and was aggrieved by the judgment entered against the Defendant herein. The Applicant averred that his interest and the interest of the other members of the Applicant were not taken care of in the suit. The Applicant averred that the deposits paid by the members of the Defendant for the purchase of the suit property had been attached by way of the garnishee proceedings in contravention of the law. The Applicant averred that the attached funds belonged to the Defendant’s members and not to the Defendant, and as such could not be attached to satisfy the decree against the Defendant. The Applicant averred that the authority of the proposed interested party was being usurped in the garnishee proceedings, which were being undertaken without its input, hence the need to join it as a party. The Applicant averred that he and the other members of the Defendant who formed the Defendant for the purpose of purchasing the suit property were aggrieved by the judgment of the court and, as such, were seeking its review. 11.The application was opposed by the Plaintiffs through a replying affidavit sworn by Lynette Dawa on 4th July 2025. The Plaintiffs termed the application frivolous and an abuse of the court's process. The Plaintiffs averred that the court, having substantially determined the issues that were in dispute in this suit, is functus officio. The Plaintiffs averred that the garnishee proceedings had been concluded and that the proceeds thereof had been released to them. The Plaintiffs averred that there was nothing left in those proceedings to stay. The Plaintiffs averred that the Applicant, who was a member of the Defendant, had disobeyed the court’s decree sought to be reviewed by failing to vacate the suit property, and as such had come to a court of equity with unclean hands. 12.The Plaintiffs averred that since the Defendant had filed an appeal against the judgment of the court sought to be reviewed, the application challenging the decree and for joinder brought by the Applicant should be pursued in the appeal. The Plaintiffs averred that the proposed interested party had no interest in the suit, warranting its joinder. The Plaintiffs averred that the funds which were attached in the garnishee proceedings were in the Defendant’s account and, as such, could be utilised and had been so utilised to satisfy the Defendant’s debt. 13.The Plaintiffs averred that a case had not been made out for the review and setting aside of the judgment made herein. The Plaintiffs averred that it was an abuse of the process of the court to seek to review and set aside a judgment in respect of which an appeal has been preferred. The submissions 14.The application was heard through written submissions. The Applicant filed submissions dated 15th October 2025. The Applicant submitted that he had satisfied the threshold for joinder to the suit post judgment, and had also established sufficient cause for the review of the impugned judgment. The Applicant submitted that the garnishee and execution proceedings should be stayed and that the attached funds be restituted. 15.The Plaintiffs filed submissions dated 9th December 2025. The Plaintiffs submitted that the suit having been heard and determined, the joinder of the Applicant and the proposed interested party to the suit would serve no purpose. The Plaintiffs reiterated that the Applicant had not met the threshold for review or for setting aside the impugned judgment. The Plaintiffs submitted that the funds which were the subject of the garnishee proceedings were not members' deposits but monies held on the Defendant’s account. The Plaintiffs submitted further that in any event, the garnishee proceedings sought to be stayed had been concluded, and as such, there was nothing to stay. Analysis and determination 16.I have considered the Applicant’s application together with the supporting affidavit. I have also considered the replying affidavit filed by the Plaintiffs in opposition to the application. Finally, I have considered the submissions by the advocates for the parties. The Applicant’s application has several limbs which I will consider separately. The first limb of the application seeks the joinder of the Applicant and the Commissioner for Co-operative Development to the suit as “grievant” and an interested party, respectively. Joinder is provided for under Order 1 rules 1, 3 and 10 of the Civil Procedure Rules. There is no express rule in the Civil Procedure Rules for the joinder of a party to a suit as a grievant or an interested party. I even doubt if our civil procedure recognises a party to a suit known as “a grievant”. I have no doubt, however, that the court has an inherent power to join a party to a suit as an interested party for the ends of justice to be met. In light of the grievance the Applicant seems to have against the judgment entered herein in favour of the Plaintiffs, I will treat his application as if he is seeking to be joined in the suit as an interested party together with the Commissioner for Co-operative Development instead of outrightly dismissing the application for seeking joinder to the suit as “a grievant”, a term alien to our Civil Procedure. 17.The Civil Procedure Rules do not define the term “interested party”. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which are not relevant to these proceedings save for the purposes only of the definition it gives to an interested party, define an interested party in rule 2 as follows:"a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation”. 18.The court’s power to join a party to a suit as an interested party is discretionary and, as such, must be exercised judiciously. An applicant seeking to join or to join another party to a suit as an interested party must satisfy the court that they or the party sought to be joined has a stake or an interest in the suit. 19.In Communications Commission of Kenya and 4 Others v. Royal Media Services Limited & 7 Others[2014]eKLR, the Supreme Court stated as follows:(22)In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemu case where the Court (at paragraphs 14 and 18) held:“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”(2)Similarly, in the case of Meme v. Republic [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:(i)Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;(ii)joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;(iii)joinder to prevent a likely course of proliferated litigation.”(24)We ask ourselves the following questions:(a)what is the intended interested party’s stake and relevance in the proceedings; and(b)will the intended interested party suffer any prejudice if denied joinder.” 20.In Francis K. Muruatetu and another v. Republic & 5 others [2016]eKLR, the court stated as follows on the joinder of an interested party to a suit:(37)From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: 21.One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:i.The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.ii.The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.iii.Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.” 22.I agree with the Plaintiffs that the joinder of the Applicant and the proposed interested party to this suit will serve no purpose. This suit has been heard and conclusively determined. The garnishee proceedings have been heard and concluded similarly. I am able to see what further interest the Applicant and the proposed interested party would have in this concluded suit. The judgment of this court has been appealed. I agree with the Plaintiffs that the Applicant is at liberty to pursue the grievances that he has against the said judgment in the Court of Appeal. I am also concerned that the Applicant, who is not a party to the suit, is seeking to add the proposed interested party to the suit. I am of the view that the proposed interested party was at liberty to move the court to vindicate its interest in the suit, if any. There is no evidence that it had requested or authorised the Applicant to do so on his behalf. The Applicant placed no evidence before the court showing that the money attached in the garnishee proceedings was members' deposits held by the Defendant rather than the Defendant’s own funds. I am of the view that if the money did not belong to the Defendant, the Applicant and other members of the Defendant who claimed that the funds belonged to them should have raised an objection to the attachment rather than seeking to join the concluded suit as interested parties. If such an objection was raised during the garnishee proceedings by the Applicant and overruled by the Deputy Registrar, the right course of action to take would have been to appeal the decision rather than seek to join the suit as a party and set aside a judgment in a dispute that did not concern him. 23.The other limb of the application sought a stay of the garnishee proceedings and a stay of execution of the garnishee order pending the hearing and determination of the application. The orders sought here were interim. Since they were not granted, they are now spent. In any event, I agree with the Plaintiffs that since the garnishee proceedings have been concluded, the garnishee nisi made absolute and the attached funds released to the Plaintiffs, there is nothing left to stay. 24.The last limb of the application is seeking the review and setting aside of the judgment entered herein in favour of the Plaintiff. The court’s power to review its orders and decrees is provided for in Section 80 of the Civil Procedure Act under which the Applicant’s application was brought. It provides as follows:Any person who considers himself aggrieved –a.By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred, orb.By a decree or order from which no appeal is allowed by this Act.May apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” 25.Order 45 of the Civil Procedure Rules, also invoked by the Applicant, lists specific grounds upon which an application for review can be made. Order 45 rules 1 and 2 of the Civil Procedure Rules provide as follows:1.(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.” 26.In Republic v. Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, the court stated as follows:30.The principles which can be culled out from the above-noted authorities are:i.A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.ii.The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.iii.An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.vi.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detailed examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.ix.Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1.x.The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.” 27.In Francis Origo & another v. Jacob Kumali Mungala, Eldoret CA No. 149 of 2001, [2005]eKLR, the Court of Appeal stated as follows on review:…it is clear that an applicant has to show that there has been discovery of new and important matter or evidence which after due diligence, was not within his knowledge or could not be produced at that time or he must show that there is some mistake or error apparent on the face of the record or that there was any other sufficient reason. And most importantly, the applicant must make the application for review without unreasonable delay.”“Sufficient reason” was defined in Hon. Attorney General v. the Law Society of Kenya & Another, Civil Appeal (Application) No. 133 of 2011(UR), as follows:“Sufficient cause or good cause in law means:...the burden placed on a litigant (usually by court rule or order) to show why a request should be granted or an action excused. See Black’s Law Dictionary, 9th Edition, page 251. Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubts in a judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.” 28.On the grounds set on the face of the application, the Applicant indicated that he was seeking review of the judgment on the ground of sufficient cause. In his submissions, however, the Applicant contended that he was seeking a review on account of an error apparent on the face of the record and on the ground of discovery of a new and important matter or evidence. On the alleged error on the face of the record, the Applicant contended that the court had treated the letter dated 1st June 2007 as an offer letter, whereas it was a letter of acceptance of an offer already made to purchase the suit property. The other error pointed out by the Applicant was that the seller of the suit property was Kipsitoi Farm Limited and not the Plaintiffs, who had no privity of contract with the Defendant. 29.On the point of discovery of new and important matter or evidence, the Applicant contended that the funds that were attached by the Plaintiffs were members' deposits and not the Defendant’s property, and as such, the same could not be attached without the consent of the Commissioner of Co-operative Societies Development. 30.I find no error on the face of the judgment delivered herein on 9th December 2024. The allegation that the court in its judgment misapprehended the letter dated 1st June 2007 as an offer letter rather than an acceptance, and also treated the Plaintiffs as the sellers of the suit property, while the real seller was Kipsitoi Farm Limited, if true, would amount to an erroneous decision which can only be corrected through an appeal and not by way of a review. 31.Regarding the alleged discovery of new and important matter or evidence, no such matter or evidence has been established. The fact that members' deposits cannot be attached in execution of a decree without the Commissioner of Corporative Development's consent is provided for by law, according to the Applicant. It is therefore not a new matter or evidence that the Applicant discovered after the judgment of the court sought to be reviewed. In any event, the ownership of the funds which were attached in the garnishee proceedings was not in issue at the trial of the suit. Conclusion 32.In the final analysis, I find no merit in the Notice of Motion application dated 16th April 2025. The application is dismissed with costs to Plaintiffs. WRITTEN AND SIGNED AT NAIROBI BYS. OKONG’OJUDGEDELIVERED, COUNTERSIGNED AND DATED AT KISUMU THIS 21ST DAY OF MAY 2006E.ASATIJUDGERuling delivered virtually through Microsoft Teams Platform in the presence of:No appearance for the PlaintiffsAkech for the DefendantOmbwayo for the ApplicantAtika Court Assistant