[2024] KEELC 6132 (KLR)
The court found that the applicants failed to demonstrate exceptional circumstances warranting their joinder post-judgment. Many applicants did not provide evidence of purchase from the 1st defendant, and several had already litigated the same issue in a previous application, rendering their claims res judicata. The...
Source-derived case information.
- Citation
- [2024] KEELC 6132 (KLR)
- Parties
- Plaintiff: Trufosa Cheredi Mudembei; Plaintiff: Nevin Egesa Jedevera; Defendant: John K. Malembi; Defendant: Settlement Fund Trustee; Applicant: Anthony Wanyonyi Mwasame; Applicant: Fredrcik Barasa; Applicant: Boniface Malingu; Applicant: John Weya; Applicant: Stephen Mukopi; Applicant: Neville Ngao Situma; Applicant: Winfrida Nasimiyu; Applicant: Jonah Walukaya; Applicant: imon Omega; Applicant: Samson Oteri; Applicant: Kennedy Keya; Applicant: David Moya; Applicant: Fredrcik Amani; Applicant: David Chemasia; Applicant: John Ameri Amadi; Applicant: Shem Eboso Esebwe; Applicant: Zabeth Makokha; Applicant: hem Washiko; Applicant: Kennedy Wakhisi; Applicant: Evans Omeri; Applicant: John Kedode; Applicant: Hadija Wanga; Applicant: Isaya Wasike; Applicant: Harun Kweya; Applicant: Eunice Sifuna; Applicant: Douglas Makokha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 3 of 2020
- Procedural Posture
- Notice of Motion / Post Judgment Application for Joinder and Setting Aside Judgment
- Outcome
- application dismissed with costs to the respondents
- Judges
- EO Obaga
- Legal Topics
- Joinder of Parties, Setting Aside Judgment, Res Judicata, Injunctive Orders, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trufosa Cheredi Mudembei
Plaintiff
Nevin Egesa Jedevera
Plaintiff
John K. Malembi
Defendant
Settlement Fund Trustee
Defendant
Anthony Wanyonyi Mwasame
Applicant
Fredrcik Barasa
Applicant
Boniface Malingu
Applicant
John Weya
Applicant
Stephen Mukopi
Applicant
Neville Ngao Situma
Applicant
Winfrida Nasimiyu
Applicant
Jonah Walukaya
Applicant
imon Omega
Applicant
Samson Oteri
Applicant
Kennedy Keya
Applicant
David Moya
Applicant
Fredrcik Amani
Applicant
David Chemasia
Applicant
John Ameri Amadi
Applicant
Shem Eboso Esebwe
Applicant
Zabeth Makokha
Applicant
hem Washiko
Applicant
Kennedy Wakhisi
Applicant
Evans Omeri
Applicant
John Kedode
Applicant
Hadija Wanga
Applicant
Isaya Wasike
Applicant
Harun Kweya
Applicant
Eunice Sifuna
Applicant
Douglas Makokha
Applicant
Procedural Posture
Notice of Motion / Post Judgment Application for Joinder and Setting Aside Judgment
Legal Issues
- 1 Whether the applicants should be joined as interested parties or defendants post-judgment.
- 2 Whether the judgment delivered on 13/10/2023 should be set aside to allow the applicants to be heard.
- 3 Whether the application is res judicata for some applicants.
Ratio Decidendi
The court found that the applicants failed to demonstrate exceptional circumstances warranting their joinder post-judgment. Many applicants did not provide evidence of purchase from the 1st defendant, and several had already litigated the same issue in a previous application, rendering their claims res judicata. The 1st defendant's title to the suit property had been declared null and void, and any sales made thereafter could not confer valid title to the applicants. Allowing joinder and setting aside the judgment would unjustly reward the 1st defendant for selling land he had no right to sell and would unduly prolong litigation that had already lasted 23 years. The applicants' remedy, if...
Court Disposition
application dismissed with costs to the respondents
Orders
- The applicants' notice of motion dated 1.2.2024 is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
91 paragraphs
Mudembei & another v Malembi & another; Anthony Wanyonyi Mwasame & 25 others (Proposed Interested Parties) (Environment & Land Case 3 of 2020) [2024] KEELC 6132 (KLR) (19 September 2024) (Ruling)
Neutral citation: [2024] KEELC 6132 (KLR)
Republic of Kenya
In the Environment and Land Court at Eldoret
Environment & Land Case 3 of 2020
EO Obaga, J
September 19, 2024
Between
Trufosa Cheredi Mudembei
1st Plaintiff
Nevin Egesa Jedevera
2nd Plaintiff
and
John K.Malembi
1st Defendant
Settlement Fund Trustee
2nd Defendant
and
Anthony Wanyonyi Mwasame
Proposed Interested Party
Fredrcik Barasa
Proposed Interested Party
Boniface Malingu
Proposed Interested Party
John Weya
Proposed Interested Party
Stephen Mukopi
Proposed Interested Party
Neville Ngao Situma
Proposed Interested Party
Winfrida Nasimiyu
Proposed Interested Party
Jonah Walukaya
Proposed Interested Party
imon Omega
Proposed Interested Party
Samson Oteri
Proposed Interested Party
Kennedy Keya
Proposed Interested Party
David Moya
Proposed Interested Party
Fredrcik Amani
Proposed Interested Party
David Chemasia
Proposed Interested Party
John Ameri Amadi
Proposed Interested Party
Shem Eboso Esebwe
Proposed Interested Party
Zabeth Makokha
Proposed Interested Party
hem Washiko
Proposed Interested Party
Kennedy Wakhisi
Proposed Interested Party
Evans Omeri
Proposed Interested Party
John Kedode
Proposed Interested Party
Hadija Wanga
Proposed Interested Party
Isaya Wasike
Proposed Interested Party
Harun Kweya
Proposed Interested Party
Eunice Sifuna
Proposed Interested Party
Douglas Makokha
Proposed Interested Party
Ruling
1. This is a ruling in respect of a Notice of motion dated 1. 2.2024 in which the Applicants are seeking the following orders:-1. Spent2. Pending the hearing interparties and thereafter pending the hearing and determination of this application there be a stay of execution of the judgment entered in favour of the Plaintiffs/ Respondents on 13/10/2023 and all consequential orders arising therefrom.3. The Interested parties/applicants be joined as either Interested parties or Defendants to the suit herein.4. Upon granting prayer 3 above, the Judgement made on 13/10/2023 and all consequential orders be set aside and the applicants be allowed to defend the suit filed by the plaintiffs/Respondents.5. Any other order or directions the court shall give.6. Costs be provided for.
2. The Applicants contend that they purchased various portions of land from the 1st Defendant between 2013 and 2023. They have developed their respective portions and are residing on the same. They contend that they were not aware of proceedings in this case until the area chief informed them that an eviction order had been issued against them.
3. They therefore state that they should either be joined as interested parties or defendants and that judgment be set aside so that they can be heard.
4. The applicants’ application was opposed by the Respondents based on grounds of opposition dated 7. 6.2024 and filed in court on 10. 6.2024. The Respondents contend that this application is res judicata as this court has made a ruling on a similar application where six of the present applicants were parties to it. They therefore argue that this court is functus officio.
5. The Respondent also contend that the applicants are out to waste the court’s time and that they are out to prevent them from enjoying the fruits of their judgment.
6. I have considered the Applicant’s application as well as the opposition to the same by the Respondents. I have also considered the oral submissions during the hearing of this application.
7. The issues which emerge for determination are firstly whether the applicants should be joined in these proceedings. Secondly, whether this judgment should be set aside.
8. On the first issue, it is important to state that this case was field on 23. 10. 2000 before the High Court at Eldoret. The case was fully heard and a judgement delivered on 17. 5.2015. The 1st Defendant/ Judgment Debtor appealed to the Court of Appeal. The Court of Appeal delivered its judgement on 28. 11. 2019 whereby it was held that the High Court had no jurisdiction to entertain the case when there was the Environment and Land Court which had the jurisdiction to hear it.
9. The case was remitted to the Environment and Land Court where it was heard afresh and judgment delivered on 13. 10. 2023. When the Respondents commenced the execution process, the present application was filed. The Applicants are seeking to join the Proceedings Post Judgement.
10. The jurisdiction to join a party to a case Post Judgment is exercised only in exceptional and justifiable circumstances. One such exception is where a case has been determined and adverse orders have been issued against a party who was neither given notice of the case nor heard on the issue in dispute.
11. In the case of Mary Beach Limited –Vs- Attorney General & 18 others (2018) eKLR the Court of Appeal outlined the relevant principle as follows:-“However there are exceptional circumstances that could justify a court to enjoin a party even after judgment has been passed. One such exception is where a matter has been determined and adverse orders have been issued against a party who was neither given notice of the suit nor heard on the issue in dispute. Enjoining such a party a court would also have to set aside the judgement entered to give him/her an opportunity to be heard.”
12. The 2nd, 3rd, 5th, 6th, 7th, 10th, 15th, 16th, 17th, 19th, 20th and 21st Applicants did not Annex any documents to show that they purchased land from the 1st Defendant /Judgement Debtor. The court cannot therefore determine whether they are persons who should have been notified of the pending proceedings or heard on the issue in contention.
13. The 4th, 11th, 12th, 13th, 14th and 18th Applicants were all parties in a similar application which was dated 23. 11. 2023and which application was heard fully and a ruling delivered on 7. 3.2024 dismissing the same. This application is therefore res judicata.
14. The 1st Defendant/Judgement debtor had been permanently injuncted from interfering with the suit property vide judgment of 17. 11. 2015. There were however stay orders which were given which stay orders lapsed on 28. 7.2016. This therefore meant that the 1st Defendant/Judgement Debtor and his servants were restrained from dealing in any manner with the suit property.
15. There was no stay granted by the Court of Appeal. As the 23rd and 24th applicants purchased their portions on 22. 7.2019 and 18. 6.2019 respectively after judgement of 17. 5.2015 which was valid and had not been set aside, there is no way the High Court would have made any adverse orders against them as they were not entitled to be notified or heard.
16. Despite injunctive orders being in force and proceedings being active, the 1st Defendant/Judgement Debtor proceeded to sell portions of the suit property to the Applicants.
17. The 1st Defendant/Judgement debtor was aware that the title held by him had been declared to be null and void. He was aware that there were active proceedings in court. Even the Court of Appeal held in their judgement that the title held by the 1st Defendant/Judgement Debtor was a nullity. They only remitted back the case for fresh hearing as the High Court had no jurisdiction to hear the case.
18. This being the case, the 1st Defendant/Judgement Debtor had no good title to pass to the applicants. The circumstances of this case do not call for joinder of the Applicants in this case. The case has taken 23 years to conclude. Joining the applicants in this case will inevitably mean that the judgement has to be set aside. If this were to happen, it will be tantamount to rewarding the 1st Defendant/Judgement Debtor who has gone ahead to sell the suit property well aware that he had no good title. The applicants should pursue the 1st Defendant/Judgment Debtor for any damages which they will incur. Litigation has to come to an end.
19. Based on the above analysis, I find that the Applicants’ application is devoid of merit. The same is dismissed with costs to the Respondent.It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 19TH DAY OF SEPTEMBER, 2024. E. O. OBAGAJUDGEIn the virtual presence of;M/s Muresia for Plaintiffs/Respondents.Court Assistant –Laban