Gatabaki & another v Attorney General & 8 others; Equity Bank Kenya Limited (Intended Respondent) (Environment & Land Petition 44 of 2018) [2025] KEELC 104 (KLR) (16 January 2025) (Ruling)
Neutral citation:
[2025] KEELC 104 (KLR)
Republic of Kenya
Environment & Land Petition 44 of 2018
JO Mboya, J
January 16, 2025
Between
Nancy Wanja Gatabaki
1st Petitioner
Nancy Wanja Gatabaki, Josephine Beatrice Gathoni and Susan Esther Wangari [As the Administrators of the Estate of the Late Dr. Samuel Mundati Gatabaki]
2nd Petitioner
and
The Hon. Attorney General
1st Respondent
The Cabinet Secretary for the Ministry of Lands
2nd Respondent
The Cabinet Secretary for the Ministry of Transport & Infrastructure Development
3rd Respondent
National Land Commission
4th Respondent
Chief Land Registrar
5th Respondent
Kenya Urban Roads Authority
6th Respondent
Chief Valuer, County Government of Nairobi
7th Respondent
The Director of Survey
8th Respondent
The Director of City Planning
9th Respondent
and
Equity Bank Kenya Limited
Intended Respondent
Ruling
Introduction and Background
1.The Intended Respondent/ Applicant [herein after referred to as the Applicant] has approached the Honourable court vide Notice of Motion Application dated the 22nd October 2024 and wherein same [Applicant] has sought for the following reliefs;i.………………………………………………………………Spentii.Pending the hearing and determination of this Application, there be a stay of execution of the judgment delivered by this court on 23rd September 2024 and the resultant decree.iii.The judgment delivered on 23rd September 2024 and the resultant decree be reviewed and set aside.iv.Equity Bank (Kenya) Limited be joined to these proceedings as the 10th Respondent in the further amended petition dated 13th April 2023 and be granted an opportunity to respond to the Amended Petition.v.The costs of this Application be provided for.
2.The instant application is premised on the supporting affidavit one Moses Ndirangu, sworn on the 22nd October 2024; and a Further affidavit sworn on the 21st November 2024. Instructively, the deponent of the named affidavits has averred that the Applicant herein holds a valid charge over L.R No. 28223/33. Furthermore, the deponent has averred that L.R No. 28223/33 arose from amalgamation from various parcel[s] of lands including L.R No. 2980/1; 5980/3 and 4508/1, respectively.
3.Upon being served with the instant application, the Petitioners/Respondents responded thereto vide Replying affidavit sworn by Nancy Wanja Gatabaki. Notably, the Replying affidavit is sworn on the 12th November 2024.
4.Vide the Replying affidavit, the deponent has averred inter-alia that the amalgamation of L.R No. 5980/1; 5980/3 and 4801/1 [which is the basis of the application beforehand] was fraudulently undertaken without the involvement of and notice to the Respondents. In addition, it has also been averred that the impugned amalgamation and the creation of L.R No. 28223/33 which underpins the current application was undertaken by Peter Kiarie Muraya and his wife, namely, Susan Waceke Muraya, in connivance/ collusion with various surveyors. To this end, the Respondents have impugned the legality of the title being relied upon by the Applicant.
5.The Respondents to the original Petition intimated to court that same [Respondents] were not averse to the application. In this regard, the said Respondents [represented by the honourable attorney general] intimated that same shall not be filing any response to the application.
6.The application beforehand came up for hearing before the court whereupon the advocates for the respective parties covenanted to canvass and dispose of the application by way of written submissions. To this end, the court circumscribed the timelines for the filing and exchange of the written submissions.
7.Arising from the foregoing, the Applicant filed written submissions dated the 22nd November 2024; whilst the Respondent filed written submissions dated the 2nd September 2024. For coherence, the two [2] sets of written submissions form part of the record of the court.
Parties’ Submissions:
a. Applicant’s Submissions:
8.The Applicant filed written submissions dated the 22nd November 2024; and wherein the Applicant has adopted the grounds contained in the body of the application. In addition, the Applicant herein has reiterated the contents of the supporting affidavit sworn on the 22nd October 2024 and the further affidavit sworn on the 21st November 2024.
9.Furthermore, learned counsel for the Applicant has raised and canvassed three [3] salient issues for consideration by the court. Firstly, learned counsel for the Applicant has submitted that even though the Applicant was not a party to the Petition in the first instance, same [Applicant] has the requisite capacity to file the application seeking for review and setting aside of the impugned judgment.
10.Additionally, learned counsel for the Applicant has submitted that the provisions of Order 45 Rule 1 of the Civil Procedure Rules,2010; envisaged a scenario where an application can be made by any aggrieved person, even where the aggrieved person was not a party to the proceedings. In this regard, learned counsel for the Applicant has invited the court to find and hold that the Applicant herein falls within the ambit of an aggrieved person.
11.In support of the submissions that an application for review can be mounted by any person, learned counsel for the Applicant has cited and referenced the decision in the case of Accredo AG, Salama Beach Hotel Ltd, Hans Jurgen Langer & Zahra Langer v Stephano Hucceil & Issac Rudrot [2017]eKLR.
12.Secondly, learned counsel for the Applicant has submitted that the Applicant herein holds a lawful and legitimate charge over L.R No. 28223/33, [hereinafter referred to as the suit property]. Furthermore, it has been contended that the suit property which is currently charged arose from amalgamation of L.R No. 5980/1; 5980/3 and 4508/1, respectively.
13.To this end, learned counsel has invited the court to take cognizance of the report of one Charlse Gathogo [licensed surveyor] which has been annexed to the Affidavit sworn on the 22nd October 2024.
14.In particular, learned counsel for the Applicant has submitted that the report under reference traced the background of the suit property to L.R No’s 5980 [which was subdivided] and 4980/1, respectively.
15.Be that it may, it has been submitted that the Petitioners/Respondents herein filed the instant suit without disclosing to the court that the Suit property had been indeed subdivided and the resultant sub-divisions arising therefrom amalgamated with L.R No. 4508/1.
16.Furthermore, learned counsel for the Applicant has submitted that the Applicant herein has a direct stake and actionable interests in respect of the subject Petition and by extension, the suit property. In this regard, learned counsel for the Applicant has submitted that the Applicant herein is therefore entitled to joinder in respect of the instant matter.
17.Other than the foregoing, it has been submitted that the subject proceedings and the judgment of the court have impacted upon and have vastly affected the rights and interests of the Applicant. However, it has been submitted that the Applicant herein was never afforded an opportunity to be heard. To this end, it has been contended that the Applicant has thus been condemned unheard.
18.In support to the foregoing submissions and more particularly, the necessity to join the Applicant as party in the instant matter, learned counsel for the Applicant has cited and referenced the decision in the case of Onyango v Attorney General [1987]eKLR and Mbaki v Macharia & Another [2005] 2 EA 2006, respectively.
19.Thirdly, learned counsel for the Applicant has submitted that the Applicant herein is a necessary party and is thus entitled to joinder in accordance with the provisions of Order 1 Rule 10 of the Civil Procedure Rules, 2010. Further and in any event, learned counsel for the Applicant has submitted that unless the Applicant is joined into the suit, the Applicant’s right and interests to the suit property will stand extinguished without regard to the due process of the law.
20.In support of the foregoing submissions, learned counsel for the Applicant has cited and referenced the decision in JMK v MWM & Another [2015]KECA 525 and Alton Homes Ltd & Another v Davis Nathan Chelogoi & 5 Others [2020]ekLR, respectively.
21.Finally, learned counsel for the Applicant has submitted that the Applicant has raised and highlighted various grounds to warrant the review of the judgment beforehand. In particular, it has been submitted that the judgment under reference was granted on the erroneous assumption that L.R No’s 5980/3 and 4508/1 were in existence. Nevertheless, it has been posited that the impugned titles ceased to exists following the amalgamation of same and the consequential creation of L.R no. 28223/2, which is the precursor of the suit property.
22.To buttress the submissions that the Applicant has met and established the requisite conditions to warrant review of the impugned judgment, learned counsel for the Applicant has cited and referenced inter-alia the decision in Nyamogo & Nyamogo Advocates v Kogo [2001] 1 EA 173; National Bank of Kenya Ltd v Ndungu Njau [1997]eKLR and Muller’s The Code of Civil Procedure 18th Edition Volume 3 at page 3652, respectively.
23.In a nutshell, learned counsel for the Applicant has submitted that the application beforehand meets and satisfies the threshold under the provisions of Order 1 Rule 10 and Order 45 Rule 1 of the Civil Procedure Rules, 2010. In the premises, learned counsel has implored the court to find and hold that the application is meritorious and thereby proceed to allow same.
b. Respondent’s Submissions:
24.The Petitioners/Respondents [hereinafter referred to as the Respondents] filed written submissions dated the 2nd December 2024; and wherein the Respondents have reiterated the averments at the foot of the Replying affidavit sworn on the 12th November 2024. In addition, the Respondents have proceeded and highlighted five [5] salient issues for consideration by the court.
25.First and foremost, learned counsel for the Respondents has submitted that the Applicant herein has neither established nor demonstrated that same [Applicant] is a bona fide chargee in respect of L.R No. 28223/33 [the suit property]. In addition, it has been stated that the Applicant herein was obliged to carryout and undertake due diligence to ascertain the validity of the suit property before the perfection of the charge.
26.Nevertheless, it has been submitted that the suit property which the Applicant alludes to arose from a fraudulent transaction [read amalgamation] and as a result of the fraud underpinning the creation of the suit property, the Applicant cannot contend that same is a bona fide chargee or at all.
27.Secondly, learned counsel for the Respondents has submitted that the Applicant’s claim to and in respect to the suit property is anchored on a skewed and slanted Survey Report prepared by one Mr. Charlse Gathogo. In particular, it has been contended that the report under reference has referenced various survey plans but which survey plans were disowned by the surveyor Mr. B. M Okumu, who is alleged to have prepared same.
28.To the extent that the suit property arose from the fraudulent process, learned counsel for the Respondents has submitted that no lawful rights and interests can therefore accrue and/.or arise therefrom.
29.In support of the submissions that a fraudulent title does not espouse any lawful rights and/or interests in favour of the title holder, learned counsel for the Respondents has invoked and referenced the case of Loice Wanja Rugendo & Another v Festus Mbaka Murango & 3 Others [2020]eKLR and Albata Mae Gacci v Attprney General & 4 Others [2006] eKLR and Munyu Maina v Hiram Gathiha Maina [2013]eKLR, respectively.
30.Thirdly, learned counsel for the Respondents has submitted that the Applicant herein has neither established nor demonstrated any basis to warrant its joinder into the suit beforehand. In particular, it has been submitted that the Applicant’s claim relates to [sic] her interests in L.R 28223/33 whereas the suit beforehand touches on and concerns compensation in respect of L.R No. 5980/2.
31.To the extent that the Applicant’s claim relates to L.R No. 28223/33 which is stated to be different from L.R 5980/2, it has been contended that the Applicant herein therefore has no nexus or lawful claim to warrant joinder.
32.Fourthly, learned counsel for the Respondents has submitted that the Respondents herein did not conceal and or fail to disclose any material evidence to the court. In any event, it has been contended that the Respondents herein were neither notified of nor involved in the process leading to the amalgamation of the various plots and [sic] the creation of L.R No. 28223/33.
33.Owing to the fact that the Respondents were neither party nor privy to the impugned process of amalgamation, it has been contended that the claim of non-disclosure of material evidence, is therefore misconceived and legally untenable.
34.Finally, learned counsel for the Respondents has submitted that the Applicant herein is desirous to be joined in the subject matter with a view to [sic] canvassing a claim based on the charge. Nevertheless, it has been submitted that insofar as the Applicant’s claim is based on a charge, such a claim cannot be canvassed and adjudicated upon by the Environment and Land Court.
35.Arising from the foregoing contention, learned counsel for the Respondents has therefore submitted that the honourable court is not seized of the requisite jurisdiction to decree joinder of the Applicant and to adjudicate upon the interest/claim, being [sic] propagated by the Applicant.
36.To buttress the submissions that the court is not seized of the requisite jurisdiction to entertain the dispute touching on a charge and a claim by a chargee, the counsel for the Respondent has cited and referenced inter-alia the decision in Cooperative Bank of Kenya v Patrick Kangethe Njuguna [2017]eKLR; and Kisekem Ltd v National Bank of Kenya Ltd [Land Case E014 of 2023] 2024 KEELC, respectively.
37.Finally, learned counsel for the Respondents has also submitted that the issues being adverted to and which underpin the Applicant’s intention to be joined in the instant matter are Res-judicata. To this end, learned counsel has submitted that the issues under reference have been canvassed and disposed of in various cases in terms of paragraph 32 of the Further affidavit sworn on behalf of the Applicant.
38.Premised on the submissions that the issues being raised and highlighted by the Applicant are Res-judicata, learned counsel for the Respondents has cited and referenced inter-alia the decision in E.T v Attorney General & Another [2012]eKLR; Africa Oil Turkana Ltd & 3 Others v Permanent Secretary Ministry of Energy & 7 Others [2016]eKLR and Ushago Diani Investment Ltd v Abdulwahab [Environment & Land Case 12 of 2023] [2023] KEELC 2213 [KLR], respectively.
39.Flowing from the foregoing arguments, learned counsel for the Respondents has invited the court to find and hold that the Application under reference is not only premature and misconceived, but same constitutes an abuse of the due process of the court. To this end, the court has been invited to find and hold that the application is devoid of merits.
Issues For Determination:
40.Having reviewed the application and the response thereto; and having taken into account the written submissions filed on behalf of the respective parties, the following issues do emerge [emerge] and are thus worthy of determination;i.Whether the Applicant herein is seized of the requisite capacity to apply for review and variation of the Judgment or otherwise.ii.Whether the Applicant herein has demonstrable [actionable] interests and/or stake in the suit and by extension the suit property or otherwise.iii.Whether the issues raised by the Applicant are barred by the doctrine of Res-judicata or otherwise.iv.Whether the Applicant has met the requisite threshold to warrant review of the Judgment of otherwise.
Analysis And Determination
Issue Number 1 Whether the Applicant herein is seized of the requisite capacity to apply for review and variation of the judgment or otherwise.
41.The Applicant herein has filed the instant application and same seeks two [2] primary reliefs, namely, the review and setting aside of the judgment and the consequential joinder of the Applicant as the 10th Respondent in the further amended Petition.
42.Despite the fact that the Applicant herein seeks review and setting aside of the judgment of the court, it is imperative to recall that the Applicant herein was not a party to the suit in the first instance.
43.Owing to the fact that the Applicant herein was not a party to the suit beforehand, the question that does arise is whether or not a person, the Applicant not excepted, who is not a party to the suit can apply for review.
44.To start with, there is no gainsaying that the process of review, is underpinned by the provisions of Section 80 of the Civil Procedure Act, Chapter 21 Laws of Kenya and Order 45 of the Civil Procedure Rules. In this regard, a proper understanding of the persons who are obliged to apply for and partake of review can only be discerned by interrogating the twin provisions alluded to herein.
45.Nevertheless, before endeavouring to interrogate the persons vested with the capacity to apply for review, it is apposite to reproduce the provisions of Section 80 of the Civil Procedure Act [supra] as well as the provisions of Order 45 Rule 1 of the Civil Procedure Rules 2010.
46.For ease of appreciation, the said provisions are reproduced as hereunder;
80.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; or(b)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.
47.Similarly, the provision of Order 45 Rule 1 are reproduced as hereunder;
1.Application for review of decree or order [Order 45, rule 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.
48.It is instructive to underscore that the operative word/terminology deployed both under the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010; relates to any aggrieved person. For good measure, it suffices to posit that any person is at liberty to apply for a review of a judgment, decree and/or order provided that same [Applicant] can demonstrate nexus to decree or judgment.
49.Additionally, the Applicant shall also be called upon to meet and/or satisfy the strictures outlined at the foot of Order 45 Rule 1 of the Civil Procedure Rules, 2010; including demonstration of the existence of an error or mistake apparent on the face of record; discovery of new and important evidence or sufficient cause.
50.To the extent that the operative word references any aggrieved person and not party, I come to the conclusion that the Applicant herein is indeed entitled to file the subject application and to pursue the question of review and setting aside of the judgment and consequential decree. However, as to whether the application would success is a different matter.
51.To buttress the foregoing exposition of the law and in particular, that any aggrieved person, the applicant herein not excepted, can apply for review, it suffices to reference the decision of the Court of Appeal in the case of Accredo Ag, Salama Beach Hotel Limited, Hans Jurgen Langer & Zahra Langer v Steffano Uccelli & Isaac Rudrot (Civil Appeal 36 of 2015) [2017] KECA 85 (KLR) (15 December 2017) (Judgment), where the court stated as hereunder;
52.Flowing from the ratio decidendi in the decision [supra] it is my finding and holding that the Applicant herein is clothed with the requisite capacity to seek for review, even though same was not a party to the Petition in the first instance.
ISSUE NUMBER 2 Whether the Applicant herein has demonstrable [actionable] interests and/or stake in the suit and by extension the suit property or otherwise.
53.The Applicant herein contends that same has lawful interests as pertains to L.R No. 28223/33. In particular, the Applicant contends that the suit property herein arose from the subdivision of L.R No. 5980; and the consequential amalgamation of the resultant subdivision with L.R No. 4508/1. To this end, the Applicant have contended that the amalgamation under reference culminated into the creation of 28223.
54.It was the further contention by the Applicant of L.R No. 28223 was thereafter sub-divided culminating into the various subdivision including L.R 28223/1, 2, 3, 4, 5 and 6, respectively. In addition, it has been averred that L.R No. 28223/1 was thereafter surrendered for use as a public road.
55.Other than the foregoing, the Applicant has contended that L.R No. 28223/2 was transferred to and in favour of M/s Muga developers Ltd. To this end, the Applicant has referenced a copy of the indenture said to have been executed by Dr. Samuel Mundati Gatabaki [now deceased] and the 1st Petitioner herein.
56.Additionally, it has been contended that L.R No. 28233/2 [details in terms of the preceding paragraph] underwent change of user and same was issued with a new land reference number. To this end, the Applicant has referenced the new land reference as L.R No. 28223/33 [suit property].
57.According to the Applicant, the properties which were being litigated upon by the Petitioners/Respondents, namely, L.R No’s 5980/1; 5980/3 and 5980/4 ceased to exist when same were amalgamated with L.R No. 4508/1. Furthermore, the Applicant has also contended that subsequently the resultant parcel, namely, L.R 28223, was equally subdivided.
58.The bottom line of the Applicants contention is to the effect that even though the Petitioners/Respondents adverted to and sought recompense on the basis of the various titles in the further amended Petition, the Petitioners were aware that the named titles ceased to exist.
59.On the other hand, the Applicant has also contended that the suit property, which constitutes an amalgamation of the various titles that were referenced at the foot of the Further amended petition was lawfully charged unto it. To this end, the Applicant has referenced the charged instrument duly registered over and in respect of L.R No. 28223/33.
60.Arising from the foregoing, the Applicant contends that same has direct interests and actionable stake in respect of the instant matter. In any event, the Applicant has also contended that the proceedings and the ultimate judgment that was rendered in respect of the instant matter has impacted upon and has adversely affected her rights to the suit property.
61.Owing to the foregoing, the Applicant thus posits that same [Applicant] is a necessary party and thus ought to have been joined in the suit. In this regard, the Applicant has invoked and relied upon the provisions of Order 1 Rule 10[2] of the Civil Procedure Rules.
62.In response to the contention by the Applicant herein, the Petitioners/Respondents have averred that the process leading to [sic] the amalgamation of L.R No. 5980/1, 5980/2, 5980/3 and 5980/4 with L.R 4508/1, was undertaken without their involvement and/or consent. In this regard, the Petitioners/Respondents have posited that the impugned amalgamation was therefore fraudulent.
63.Additionally, the Petitioners/Respondents have contended that insofar as the impugned amalgamation was fraudulent, the creation of [sic] L.R No. 28223/33, cannot vest any lawful rights/interests in the Applicant.
64.To contextualize the Petitioner/Respondent’s position, it is imperative to reproduce the contents of paragraph 4 of the Replying affidavit.
65.Same are reproduced as hereunder;
4.That at the foot of the Applicant's claim is the grant IR 126634 Land Reference No.28223/33 which parcel of land it alleges arose from the subdivision of L.R No.5980 and subsequent amalgamation thereof. This depicts a clear and complete departure from facts in the following terms:-a)Whilst it is not in contention that Land Reference Number 5980 was in subdivided into 4 parcels to wit L.R 5980/1, 5980/2/5980/3 and 5980/4, the Petitioners have never been party to, sanctioned, authorized and/or permitted any subsequent subsequent subdivisions and/or amalgamation and that gave rise to the impugned property Land Reference Number 28223/33 which forms the crux of the instant Notice of Motion. (Annexed hereto and marked as NWG-2 is a copy of the grant IR 126634 Land Reference No. 28223/33)b)The amalgamation of L.R 5980/1, 5980/3 and 4508/1 as contemplated by Survey Plan F/N 353/71 to give to L.R 28223 and the subsequent multiple subdivisions thereof, including the Applicant's claim of L.R 28223/33, were fraudulently and clandestinely conducted by one Peter Kiarie Muraya, his spouse Susan Waceke Muraya, in cahoots with unscrupulous surveyors and through the Company known as Muga Developers Limited without the knowledge, consent and/or authority from the Petitioners.c)The Applicant would thereafter, willfully, and without conducting due diligence into the validity and veracity of the property L.R No. 28223/33advance a loan facility to the said Muga Developers Limited vide the letter of offer dated 15th November 2011 through a legal charge over the impugned property Land Reference No. 28223/33 and which charge forms the substratum of the instant Application. (Annexed hereto and marked as NWG-3 is a copy of the letter of offer).d)While the Applicant in paragraph 5(d) of its Supporting Affidavit whom the amalgamation of L.R Nos. 5980/1, 5980/3 and 4508/1 to form LR No.28223 was conducted, at Paragraph 5 ge) the affiant has alluded widely that according to the Survey Plan F/N 353/71 mentioned hereinabove, the subdivision of L.R No. 28223 into L.R 28223/1, 2,3, 4,5 and 6,the subsequent change of use of L.R 28223/2 converting the same to L.R 28223/33 and the subsequent survey works thereof were conducted by B.M Okumu.In the letter of 22nd June 2020 addressed to B.M. Okumu, the law firm of Howard Nick & Kenneth sought for confirmation whether the licensed surveyor undertook the survey work exemplified by the Survey Plan No. 353/71representing the amalgamation of L. R Nos. 5980/1, 5980/3 and 4508/1 to form L.R No. 28223, the further subdivision of L.R No. 28223 into the subsequent multiple subdivisions thereof, including the Applicant's claim of L.R 28223/33 (Annexed hereto and Marked as NWG-4 is the letter dated 22nd June 2020)f)In an interesting twist of events, the said licensed surveyor B. M. Okumu, in his letter dated 14th July 2020 vehemently distanced himself from any survey work on the abovementioned parcels of land. For coherence, the said surveyor firmly denied preparing the Survey Plan 353/71, and causing the subdivisions and amalgamation alluded by the Applicant.In fact, he denied ever having any dealings with the Petitioners with regard to the aforementioned parcels of land.(Annexed hereto and Marked as NWG-5 is the letter dated 14th July 2020)g)As contemplated in the letter dated 11th April 2023, the Petitioners decried ever sanctioning any further survey on L.R 5980 and 4908/1, save for the subdivision of L.R 5980 to L.R 5980/1, 2, 3 and 4 and to that end, the Director of Surveys wrote to the Chief Land Registrar intimating the commencement of the process of cancellation of all the survey records emanating from Survey Plan 353/71 within the premises of Section 31 of the Survey Act Cap 299 (Annexed hereto and Marked as NWG-6 is a copy of the letter dated 11th April 2023)h)Further, in the letter dated 29th March 2023 the Director of Surveys intimated the abovementioned fraudulent dealings to the National Land Commission stating that the aforesaid dealings were foreign to the Petitioners. (Annexed hereto and Marked as NWG-7 is a copy of the letter dated 29th March 2023)i)Following the complaint that was lodged with the National Land Commission, it was determined by the commission vide the letter dated 16th October 2017 that the amalgamation of L.R 5980/1 and L.R 5980/3 with 4508/1 was done irregularly and fraudulently thereby precipitating the institution of a restriction over L.R 28223. (Annexed hereto and Marked as NWG- 8 is a copy of the letter dated 16th October 2017)
66.What I hear the petitioners/Respondents to be contending is to the effect that the amalgamation may have been undertaken but same was neither sanctioned nor authorized by the Petitioners/Respondents. Furthermore, the Petitioners/Respondents adopt the position that the amalgamation was fraudulent and thus illegal.
67.Having reviewed the rival position taken by the Applicant and the Petitioners/Respondents, what comes to the fore is the fact that the Applicant herein may [I say may] be havingactionable interests over and in respect of L.R No. 28223/33.
68.Other than the foregoing, it is also discernible that L.R No. 28223/33 has its roots in the amalgamation of L.R 5980/1; 5980/3; 5980/4 and 4508/1 [which were the subject of the instant petition].
69.Without making any precipitate findings and determination as to the legality of L. R No 28223/33 [suit property], it is evident that the Applicant herein indeed has a direct stake and interests in the subject matter.
70.To my mind, the proceedings and judgment in respect of this matter have impacted upon and adversely affected the interests of the Applicant. In this regard, it suffices to posit that the Applicant [Intended Respondent herein] is a necessary party.
71.In this regard, I beg to adopt and reiterate the decision of the Court of Appeal; in Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others [2020] eKLR, where the court stated and observed as hereunder;
29.As stated earlier, the property is at the heart of the dispute in this matter. There is no dispute that 4th respondent who was evicted from the property on the basis of the judgment was the registered proprietor of the property at the time of his eviction.There is also no dispute that the 6th respondent’s interest in the property, as holder of a first charge over the property, is also registered against the title. The 4th and 6th respondents are therefore directly and legally interested in the answer to the issues raised in the suit and are undoubtedly necessary and proper parties to the action.
30.The appellants have not demonstrated that in allowing the joinder of the 4th to 6th respondents in the suit, the Judge misdirected herself in law, or that she misapprehended the facts, or that she considered extraneous considerations, or that she failed to consider relevant considerations, or that her decision is plainly wrong. We do not have a basis for interfering with her decision in that regard.
31.Next is the question whether the Judge erred in setting aside the entire judgment and ordering the trial of the suit to commence de novo upon the joinder of the 4th, 5th and 6th respondents. It bears repeating that the 4th respondent as the registered owner of the property who was in occupation and the 6th respondent in whose favour the property was charged to secure loan facilities had direct interest in the outcome of the suit.Yet, by the judgment of the ELC, their respective interests in the property stood to be extinguished without those parties having been heard. It is instructive that Order 21 Rule 6 of the Civil Procedure Rules states:“Where there is a prayer for a judgment the grant of which would result in some alteration to the title of land registered under any written law concerning the registration of title to land, a certified copy of the title shall be produced to the court before any such judgment is delivered.”
32.Had the appellants furnished the ELC with a certified copy of the title showing the status of the property at the time, the same would have revealed the 4th and 6th respondents’ interest in the property. The omission by the appellants to do so resulted in adverse decision against them, that would wipe out their interest in the property, without a hearing.
72.From the foregoing analysis, it suffices to answer issue number two [2] in the affirmative. Pertinently, the Applicant has demonstrated that same [Applicant] has a direct stake and/or interests in the subject matter and thus deserving of joinder.
ISSUE NUMBER 3 Whether the issues raised by the Applicant are barred by the doctrine of Res-judicata or otherwise.
73.Learned counsel for the Petitioners/Respondents has submitted that the issues being raised and canvassed by the Applicant herein have been heard and disposed of in previous suits. To this end, learned counsel for the Respondents has cited and referenced paragraph 32 of the Applicant’s further affidavit.
74.Despite the contention by and on behalf of the Respondents that the issue being raised by the Applicant are Res-judicata, it is worthy to state that the no evidence has been brought to court by the Respondent to that effect. Pertinently, one would have expected the Respondent to bring forth a judgment of a court of competent jurisdiction declaring that the title in respect of L.R No. 28223/33 is illegal and unlawful.
75.On the other hand, one would also expected the Respondents to bring forth a judgment and/or decree invalidating the charge in favour of the Applicant herein. Nevertheless, there is no gainsaying that no such evidence has been tendered or proffered.
76.To my mind, the issue of Res-judicata would require intensive analysis and interrogation before a pronouncement can be made thereunder. However, on the basis of what is before the court, it is neither possible nor feasible to make a precipitate finding and holding on the question of Res-judicata.
77.Further and at any rate, it suffices to state that the question of Res-judicata; if at all, could be one of the issues to be dealt with and canvassed substantively once the Applicant herein is formerly joined and constituted as a party.
78.In short, my answer to the contention that the issue being raised are Res-judicata, is premature. For good measure, the Applicant has merely advanced various perspectives to demonstrate the proximate cause or nexus to the dispute beforehand.
Issue Number 4 Whether the Applicant has met the requisite threshold to warrant review of the Judgment of otherwise.
79.The Application by and on behalf of the Applicant herein is anchored on various grounds. Firstly, the Applicant contends that even though same [Applicant] holds a valid charge over and in respect of the suit property, her interests thereto have been extinguished without same [Applicant] being afforded an opportunity to be heard.
80.To this end, the Applicant contends that it has been condemned unheard without regard to the due process of the law. Pertinently, the grounds being raised herein invokes the provisions of Article 50[1] of the Constitution 2010.
81.Secondly, the Applicant has also contended that the judgment of the court was entered on the basis of an erroneous assumption that L.R No. 5980/3 and 4508/1 were in existence. Nevertheless, it has been contended that the named titles had ceased to exist upon amalgamation. Furthermore, the Applicant herein has also contended that the Respondent concealed material evidence [facts] from the court. In this regard, it has been posited that the judgment and consequential decree of the court are based on material non-disclosure.
82.To my mind, the grounds that have been highlighted and canvassed by the Applicant herein demonstrate the existence of an error and mistake apparent of the face of record. Notably, if the titles of the properties that underpin the judgment had ceased to exist, then the judgment under reference is certainly vitiated.
83.Other than the foregoing, I am satisfied that where a party demonstrate[s] that his/her rights have been affected by court proceedings without having been afforded an opportunity to be heard, then such a scenario constitute[s] an error apparent on the face of record.
84.From the foregoing observations, I am satisfied that the Applicant has demonstrated the existence of errors or mistake apparent on the face of record. Furthermore, the Applicant has also demonstrated sufficient cause to warrant review and variation of the judgment and the resultant decree of the court.
85.Before departing from this issue, it is instructive to reiterate the holding in the case of National Bank Of Kenya Limited v Ndungu Njau (Civil Appeal 211 of 1996) [1997] KECA 71 (KLR) (27 May 1997) (Judgment), where the court of appeal highlighted the parameters that underpin the grant of an order of review.
86.For coherence, the court stated and held thus;
87.The power of the court to grant review has also been elaborated in Muller’s; The Code of Civil Procedure, 18th Edition Volume 3 page 3652; where the Learned authors have opined as hereunder;
88.The circumstances surrounding the instant matter necessitate the intervention of the Honourable Court. Suffice it to underscore that the issues being adverted to and espoused by the Applicant may require in-depth analysis/interrogation and determination.
89.Such interrogation can only accrue if the judgment herein is reviewed and liberty is granted to the Applicant to join the proceedings.
90.Pertinently, the Applicant has demonstrated the existence of errors and mistake which impact upon the validity of the judgment under reference and has thus established a basis to warrant the grant of the Order[s] sought.
Final Disposition:
91.Flowing from the analysis [details highlighted in the body of the ruling], it must have become crystal clear that the Applicant herein has demonstrated a direct interests and/or actionable stake in the dispute beforehand. Furthermore, the Applicant has also shown that the proceedings herein and in particular, the judgment has indeed impacted on its rights.
92.Consequently and in the premises, I come to the conclusion that the application under reference is meritorious. Same [Application] be and is hereby allowed on the following terms;i.The Judgment delivered on the 23rd September 2024 and the resultant decree arising therefrom be and are hereby reviewed and set aside.ii.The Applicant herein be and is hereby joined to the proceedings herein and same is hereby constituted as the 10th Respondent in the Further amended Petition dated the 13th April 2023.iii.The Petitioners herein be and are hereby ordered and directed to file a further amended Petition to embody/include the Applicant as the 10th Respondent.iv.The Further amended Petition in terms of clause [iii] shall be filed and served within 14 days from the date hereof.v.The Applicant once constituted as the 10th Respondent shall be at liberty to enter appearance and file a response to the further amended Petition, if any and same to be filed and served within 14 days from the date of service.vi.The Petitioners herein shall be at liberty to file and serve a response to the pleadings, if any filed by the Respondents including the 10th Respondent.vii.The Response by the Petitioner in terms of clause [vi] shall be filed and served within 14 days from the date of service.viii.Costs of the Application shall abide the outcome of the Petition.
93.It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JANUARY 2025OGUTTU MBOYA,JUDGE.In the presence of:Benson – court AssistantMr. Kiragu Kimani SC for the Applicant/Proposed RespondentMr. Patrck Ngambiri h/b for Mr. Gatheru gathemia & Mr. Paul K Mwite SC for the Petitioners/RespondentsMr. Oscar Eredi [Chief Litigation Counsel] for the 1st, 2nd, 3rd, 4th, 6th, 7th and 8th RespondentsMs. Wanini for the 5th RespondentN/A for the 9th Respondent