[2018] KEELC 3643 (KLR)
The court held that since judgment had already been delivered in the matter, and the applicants were not seeking to set aside or review the judgment as a prerequisite to joinder, it would be futile and procedurally improper to enjoin the National Land Commission at this stage. The purpose of joinder is to ensure all...
Source-derived case information.
- Citation
- [2018] KEELC 3643 (KLR)
- Parties
- Plaintiff: Anne Gloag; Defendant: Moses Githinji and 121 Others; Respondent: National Land Commission
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 384 of 2009
- Procedural Posture
- Notice of Motion / Post Judgment Application for Joinder of Interested Party
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Joinder of Parties, Public Land Disputes, Post Judgment Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne Gloag
Plaintiff
Moses Githinji and 121 Others
Defendant
National Land Commission
Respondent
Procedural Posture
Notice of Motion / Post Judgment Application for Joinder of Interested Party
Legal Issues
- 1 Whether the National Land Commission should be enjoined as an interested party after judgment has been delivered.
- 2 Whether joinder of a party is permissible post-judgment in the absence of an application to set aside the judgment.
Ratio Decidendi
The court held that since judgment had already been delivered in the matter, and the applicants were not seeking to set aside or review the judgment as a prerequisite to joinder, it would be futile and procedurally improper to enjoin the National Land Commission at this stage. The purpose of joinder is to ensure all necessary parties are before the court for a just determination, but this is only applicable before judgment. Post-judgment, unless the judgment is set aside or reviewed, no further parties can be joined. The applicants' pending application for review had not been prosecuted, and the existence of an appeal further complicated the matter. Therefore, the application to enjoin...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to enjoin the National Land Commission as an interested party is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT OF KENYA
AT MILIMANI
ELC CASE NO. 384 OF 2009
ANNE GLOAG..............................................................................PLAINTTIFF
=VERSUS=
MOSES GITHINJI AND 121 OTHERS...................................DEFENDANTS
AND
NATIONAL LAND COMMISSION.......INTENDED INTERESTED PARTY
RULING
1. The Defendants/Respondents filed a Notice of Motion dated 4th May 2016, in which they seek orders that the National Land Commission (NLC) be enjoyed in this suit as an interested party. The applicants had been sued in this case by the respondent over ownership of LR No. 209/9366. This case was fully heard and a judgement was delivered on 19th July 2013, by lady justice Gitumbi.
2. The applicants filed a notice of appeal on 24th July 2013. On 15th July 2014, they filed an application for stay of execution and review of the judgement of 19th July 2013. The applicants also filed an application for injunction in the Court of Appeal under Rule 5(2) of the Court of Appeal Rules. The application which was filed on 15th July 2014, has not been prosecuted. The fate of the application in the Court of Appeal is not known.
3. The applicants are now contending that they have discovered that LR No. 209/9366 (suit property) was public land and that since NLC is mandated to deal with issues pertaining to public land, they should be enjoined so that the ownership of the suit property can be determined.
4. The respondent has opposed the applicants’ application based on grounds of opposition filed on 10th November 2016. The respondent contends that the applicants’ application is an abuse of the process of the court. There is already a judgement in favour of the respondent and it is therefore impossible to enjoin the NLC .
5. I have considered the applicants’ application as well as the opposition to the same by the respondent. I have also considered the submissions by the applicants. The only issue for determination is whether the NLC should be enjoined in this case. There is no contention that there is already a judgement in this case. The purpose of joinder of a party into a suit is to enable the court to determine the case if it is proved that the presence of such party is necessary.
6. In the instant case, there is already a judgement which has been delivered. The applicants are not seeking setting aside of the judgement to pave way for joinder of the NLC. It will therefore be an exercise in futility to enjoin NLC at this stage. Though the applicants had filed a separate application for review of the judgement, that application is yet to be heard and in any case, I doubt if it will ever see the light of the day in view of the Appeal which the applicants have preferred.
7. The applicants are pursuing an appeal. The NLC which is sought to be enjoined is also seeking to review grants including the one in respect of the suit property. Whether NLC can review a matter where Judgement has been given is another issue for a different forum. As matters stand, NLC cannot be enjoined in this suit where judgement has already been delivered. The upshot of this is that the applicants’ application fails and the same is hereby dismissed with costs to the respondent.
It is so ordered.
Dated, Signed and delivered at Nairobi on this 15thday of March 2018.
E.O.OBAGA
JUDGE
In the presence of ;-
Mr Mureithi for Mr Mageto for defendant
Court Assistant: Hilda
E.O.OBAGA
JUDGE