'(On whether to arrest judgment and allow a party to apply for joinder before judgment is delivered)
1. This Petition was scheduled for the delivery of Judgment on 14th October 2025. On that date the proposed or intended Interested Party, namely, Hengnuo Kenya Company Limited, through learned counsel, moved this Court orally for orders that it arrests the delivery of the judgment and permits the said Applicant to file a formal application for (its) joinder as an Interested Party. By the time it moved this court for the orders, it had filed only a Notice of Appointment of Advocates and an Affidavit sworn by one Khalif Abdi on 14th October 2025. To the Affidavit he annexed a Mineral Dealers (Processing) Licence and formal Off=Take Agreements to demonstrate that it had exclusive permission to ensure that copper ore products reached the market throughout the Republic.
2. The Applicant argued that the delivery of the judgment before it presented facts showing that its rights would be affected by the decision would prejudice it. Specifically, the applicant argued that it learned of the existence of the Petition and the intended delivery of the judgment only a day before, at 4:48 PM. Further, the issues that the Petitioner challenged regarded strategic minerals of which it had a license to deal in throughout the Republic, and the license had been issued by the Respondents on 9th July 2025. Further, the license was still in force. It gave exclusive rights to the company/ applicant to deal in those minerals. It relied on Article Rules 50(1), 48, 47 and 40 of the Constitution 2010. It prayed that it be given opportunity to be heard. Therefore, there was a need to arrest the judgment and give it an opportunity to make a formal application for joinder and also to file respective responses to the Petition.
3. On its part, the Petitioner opposed the application. It gave the basis of the petition and the reliefs it sought. It argued that the applicant did not have locus standi to move the court because it had not been joined as an Interested Party. Therefore, it could not seek substantive reliefs as sought. Further, only persons or parties already enjoined in a matter as Interested or necessary parties would move the court appropriately given that the court was functus officio.
4. It relied on the case of Kenya Medical Practitioners, Pharmacists and Dentists Union versus the County Government of Mombasa [2018] eKLR. He argued that the Supreme Court stated that someone who was not a party to a matter could not arrest the delivery of a judgment. Further here due to that to the discretion of the court should be exercised judiciously. And it could not be exercised where a matter had been heard and reserved for judgment. He added that a party could not. Be permitted to reopen the matter at that point if he was not a party. He relied on the case of Francis. More waste and another versus Republic. And argued that. Where there is no life issue. A court cannot permit an interested party who is proposed to move it. Further, he added that Article 51 of the Constitution of Kenya guaranteed the right to fair hearing. He added that that right would be violated if proposed interested party would be permitted to come into the matter before delivery of the judgment. He relied on Article 159 of the Constitution to argue that justice should not be delayed.
5. On their part, the Respondents did not oppose the application. They gave the reason that a party should be given an opportunity to be heard or put its case across rather than having the court deliver judgment only to be met with an application to set it aside.
6. In response, the applicant’s learned counsel argued that the reliefs the sought would affect his client’s license. The fact that that''s what happened to be enjoyed in our modern age should move the court at the earliest opportunity. Further, the Petitioner/ Respondent had not publicized this Petition so as to give the proposed Interests Party an opportunity to read about the existence of the Petition. That would have given them opportunity to challenge to apply for joinder.
ISSUE, ANALYSIS AND DETERMINATION
7. I have considered the application, the law and the oral arguments by all counsel. I am of the view that the only issue for determination before me is whether the application is merited. If it is not merited, then this court shall proceed to deliver the judgment it deferred from yesterday but one pending the delivery of this ruling. If it is merited then this court shall arrest the judgment and grant the applicant an opportunity to move it formally for orders of its joinder as an interested party.
8. The proposed Interested Party did not cite the provisions of the law under which he moved this court. Nevertheless, under Order 51 Rule 10 (1) of the Civil Procedure Rules, an application shall not be defeated on account of failure to cite a provision. It stipulates that “Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.” By the same token, and by virtue of Article 159(2) (d) of the Constitution, 2010, an application should not be defeated by the technicality of citing a wrong one provision unless it goes to the root of the substance of the application.
9. That said, the relief and prayer “arrest (of) a judgment” is fairly uncommon in civil procedure in our jurisdiction. It means that for the relief to be granted, a judgment must be in place for it to be granted. For instance, in this matter, this court was set to deliver its judgment herein the morning of yesterday but one. It was at that moment that the proposed interested party raised indicated through counsel that it had just learnt of the existence of the Petition, and it wished to participate in it because it had a stake in the subject being litigated over. In essence the proposed party wishes this court to stay the delivery of the judgment and give it a chance to present its facts for a holistic determination of the same. Thus, arrest of judgment is basically an order staying the delivery or finalisation of the preparation of a judgment or decision and, depending on the reason for it being sought, to restarting the whole argument or allow presentation of fresh evidence on it before ‘another’ determination is made. It is only a special and rare window that is given to the party seeking such an order to present material which is critical in the issues before the court.
10. The Court of Appeal had this to say in Peninah Nandako Kiliswa v Independent Elections and Boundaries Commission & 2 others [2014] KECA 807 (KLR),
“Granted, she could not seek to arrest the judgment as the concept of “arresting” judgment is hardly known in our civil jurisprudence. In criminal law, it simply means an act of staying a judgment or refusing to render such judgment after a verdict has been reached in an action at law or a criminal prosecution, because some defect appears on the face of the record, that if a decision is made, would make it erroneous or reversible. The absence of the concept in our rules on civil practice is perhaps explicable on the basis that while before delivery of judgment there is no judgment that can be stopped or “arrested”, on the other hand, once judgment is delivered, the question of “arresting” it cannot not arise because at that stage the Court is functus officio and an attempt to “arrest” the judgment would be like trying to lock the stable door after the horse has bolted.”
11. This view of the Court of Appeal was taken following its citation with approval of the decision of the Supreme Court of Nigeria in USIKARO V. ITSEKIRI LAND TRUSTEES (1992) 2 N.W.L.R. (Pt. 172) whereby in discussing the inherent power of Court their Lordships said as follows:-
“it is settled that apart from the rules, a Court of Record has an inherent power to postpone the hearing of any matter set down for hearing before it if the just of the case so demands ........”
12. In particular, the lead judgment by Musdapher JCA (as he then was) was deeply insightful when he stated as follows:
“I have, as mentioned above, recounted in great details the conduct of the appellant throughout the trial before the lower Court. In my view, the application to “arrest” the judgment after all the opportunities granted to the appellant which it deliberately refused to take was merely calculated to hinder the due administration of justice. From the records available, the appellant always claimed that they would settle the matter out of court when indeed they merely wanted to delay the due administration of justice. The procedure for arrest of judgment is now hardly known in our Civil jurisprudential system. It is the act of staying a judgment, or refusing to render judgment in an action at law in criminal cases after verdict. It is usually for some intrinsic matter appearing on the face of the record, which would render the judgment if given erroneous or reversible. Under the old Common Law rule the procedure for arrest of judgment is not peculiar to the criminal cases alone, it was available in civil cases under the Old Common Law Rules, but the procedure is alien to the rules of Court and does not apply in civil matters. See Bob-Manuel v. Briggs (1995) 7 NWLR (Pt.409) 537. The application made to arrest the judgment is accordingly misconceived both in law and in fact. The appellant had been given ample opportunity to defend the claims made against them and also to prosecute their Counter-claim. The appellants merely refused to use the opportunity given them. Under the circumstances, the learned trial Judge was fully justified to have (1) closed the defence and (2) concluded that the appellants had no evidence to offer on their pleadings. In the end, reject the complaint under this issue and resolve the same against the appellant.”
13. In my humble view, the power of a court to arrest judgment that it is about to deliver exists but must always be used sparingly. If this court were to agree with the Petitioner that proceeds to deliver the judgment and then the proposed party moves the court, it would mean there would be no judgment to arrest in those circumstances as the horse would have bolted. On this, I agree with the opinion of my learned sister Maureen Odero J as she gave it in In re Estate of Bernard Kariuki Thoronja (Deceased) (Succession Cause 1234 of 2007) [2022] KEHC 12850 (KLR) (Family) (5 August 2022) (Ruling) where the learned judge held:
“Clearly, thereof the powers granted to a court to arrest a decision ought to be used very sparingly and only in order to avoid injustice or hardship to a litigant. Such power ought only be exercised in cases of inadvertence or excusable mistake or error, but not to assist a litigant who is intent on abusing the court process or who is invoking said power merely in an attempt to obstruct and/or delay the course of justice.”
14. Also, in Musa Misango – vs – Erica Musigire & other [1966] EA 390, Hon Sir Udo Udoma Chief Justice of Uganda slated as follows:-
“Now it is unquestionable that, both under the inherent power of the court, and also under a specific rule to that effect under the Judicature Act, the court has a right to stop an action at this stage if it is wantonly brought without the shadow of an excuse, so that to permit the action to go through its ordinary stages up to the trial would be to allow the defendant to be vexed under the form of legal process when there could not at any stage be any doubt that the action was baseless. But from this to the summary dismissal of actions because the judge in chambers does not think that they will be successful in the end lies a wide region, and the court have properly considered this power of arresting an action and deciding it without trial as one to be very sparingly used, and rarely, if ever, excepting in cases where the action is an abuse of legal procedure. They have laid down again and again that this process is not intended to take place of the old demurrer by which the defendant challenged the validity of the Plaintiff’s claims as a matter of law. It is evident that our judicial system would never permit a plaintiff to be “driven from the judgment seat” in this way without any court having considered his right to be heard except in cases where the cause of action was obviously and almost incontestably bad.”
15. In Malindi Residents Development Group & another v County Government of Kilifi & 4 others (Environment & Land Petition 6 of 2022) [2025] KEELC 4430 (KLR) (13 June 2025) (Ruling) wherein an application to arrest judgment was made, and the court granted it on a number of conditions, the court had this to say,
“In this court’s view and without appearing to condone intentional or negligent delay of court proceedings, the panacea for delayed justice is an appropriate award for costs. Also, the fact that the respondent is and will remain, as long as the devolution structure remains in place, a critical participant in environmental matters needs not be gainsaid.”
16. In the instant matter I am alive to the fact that the proposed or intended Interested Party has exhibited to this Court a copy of a licence whose date is current while the Petitioner had filed one whose validity date has passed and it formed the basis for it challenging in this Petition the actions of the Respondents. Just as my learned brother judge termed it critical to hear the views of a proposed party who sought to arrest the judgment in that matter (above) so it is for this court which cannot close its eyes and ears to a party yearning to be heard as rules of natural justice demand. Moreover, it is not denied that the allegation that the intended Proposed Interested Party came to know of the existence of this Petition a day before the delivery of the judgment sought to be postponed or arrested. It would be remiss of this court to ignore such a critical point and deny a party who appears to have subsisting rights which may be substantially affected by the outcome of the decision of this court an opportunity to state its case for being joined to the matter before any fundamental steps such as a delivery of a judgment are made. As to the merits or otherwise of the application, this court shall not state much about it. I make that finding because most of the submissions and the two decisions relied on by the Petitioner were regarding the merits or demerits of the intended Interested Party’s application to be enjoined to this Petition. This Court has not reached that stage. Thus, they were prematurely presented to this court.
17. The upshot is that the judgment due for delivery herein arrested and postponed pending the filing and determination of a formal application by Hengnuo Kenya Company for orders that it be joined as an Interested Party.
18. The application be filed and served within the next ten (10) days. This matter be mentioned on 3rd November 2025 to confirm compliance with the orders above.
19. Costs of this application to be in the Cause.
20. Orders accordingly.
Judgment dated, signed and delivered virtually via the Teams Platform this 16th day of October, 2025.
Hon. Dr. iur Nyagaka
Judge
In the presence of,
Ms. Lola, Court Assistant
Mr. Thuku Advocate for the Petitioner
Mr. Wabwire State Counsel h/b for Ms. Opiyo State Counsel for the Respondents
Mr. M. Odero Advocate for the proposed Interested Party
'
1. This Petition was scheduled for the delivery of Judgment on 14th October 2025. On that date the proposed or intended Interested Party, namely, Hengnuo Kenya Company Limited, through learned counsel, moved this Court orally for orders that it arrests the delivery of the judgment and permits the said Applicant to file a formal application for (its) joinder as an Interested Party. By the time it moved this court for the orders, it had filed only a Notice of Appointment of Advocates and an Affidavit sworn by one Khalif Abdi on 14th October 2025. To the Affidavit he annexed a Mineral Dealers (Processing) Licence and formal Off=Take Agreements to demonstrate that it had exclusive permission to ensure that copper ore products reached the market throughout the Republic.
2. The Applicant argued that the delivery of the judgment before it presented facts showing that its rights would be affected by the decision would prejudice it. Specifically, the applicant argued that it learned of the existence of the Petition and the intended delivery of the judgment only a day before, at 4:48 PM. Further, the issues that the Petitioner challenged regarded strategic minerals of which it had a license to deal in throughout the Republic, and the license had been issued by the Respondents on 9th July 2025. Further, the license was still in force. It gave exclusive rights to the company/ applicant to deal in those minerals. It relied on Article Rules 50(1), 48, 47 and 40 of the Constitution 2010. It prayed that it be given opportunity to be heard. Therefore, there was a need to arrest the judgment and give it an opportunity to make a formal application for joinder and also to file respective responses to the Petition.
3. On its part, the Petitioner opposed the application. It gave the basis of the petition and the reliefs it sought. It argued that the applicant did not have locus standi to move the court because it had not been joined as an Interested Party. Therefore, it could not seek substantive reliefs as sought. Further, only persons or parties already enjoined in a matter as Interested or necessary parties would move the court appropriately given that the court was functus officio.
4. It relied on the case of Kenya Medical Practitioners, Pharmacists and Dentists Union versus the County Government of Mombasa [2018] eKLR. He argued that the Supreme Court stated that someone who was not a party to a matter could not arrest the delivery of a judgment. Further here due to that to the discretion of the court should be exercised judiciously. And it could not be exercised where a matter had been heard and reserved for judgment. He added that a party could not. Be permitted to reopen the matter at that point if he was not a party. He relied on the case of Francis. More waste and another versus Republic. And argued that. Where there is no life issue. A court cannot permit an interested party who is proposed to move it. Further, he added that Article 51 of the Constitution of Kenya guaranteed the right to fair hearing. He added that that right would be violated if proposed interested party would be permitted to come into the matter before delivery of the judgment. He relied on Article 159 of the Constitution to argue that justice should not be delayed.
5. On their part, the Respondents did not oppose the application. They gave the reason that a party should be given an opportunity to be heard or put its case across rather than having the court deliver judgment only to be met with an application to set it aside.
6. In response, the applicant’s learned counsel argued that the reliefs the sought would affect his client’s license. The fact that that''s what happened to be enjoyed in our modern age should move the court at the earliest opportunity. Further, the Petitioner/ Respondent had not publicized this Petition so as to give the proposed Interests Party an opportunity to read about the existence of the Petition. That would have given them opportunity to challenge to apply for joinder.
ISSUE, ANALYSIS AND DETERMINATION
7. I have considered the application, the law and the oral arguments by all counsel. I am of the view that the only issue for determination before me is whether the application is merited. If it is not merited, then this court shall proceed to deliver the judgment it deferred from yesterday but one pending the delivery of this ruling. If it is merited then this court shall arrest the judgment and grant the applicant an opportunity to move it formally for orders of its joinder as an interested party.
8. The proposed Interested Party did not cite the provisions of the law under which he moved this court. Nevertheless, under Order 51 Rule 10 (1) of the Civil Procedure Rules, an application shall not be defeated on account of failure to cite a provision. It stipulates that “Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.” By the same token, and by virtue of Article 159(2) (d) of the Constitution, 2010, an application should not be defeated by the technicality of citing a wrong one provision unless it goes to the root of the substance of the application.
9. That said, the relief and prayer “arrest (of) a judgment” is fairly uncommon in civil procedure in our jurisdiction. It means that for the relief to be granted, a judgment must be in place for it to be granted. For instance, in this matter, this court was set to deliver its judgment herein the morning of yesterday but one. It was at that moment that the proposed interested party raised indicated through counsel that it had just learnt of the existence of the Petition, and it wished to participate in it because it had a stake in the subject being litigated over. In essence the proposed party wishes this court to stay the delivery of the judgment and give it a chance to present its facts for a holistic determination of the same. Thus, arrest of judgment is basically an order staying the delivery or finalisation of the preparation of a judgment or decision and, depending on the reason for it being sought, to restarting the whole argument or allow presentation of fresh evidence on it before ‘another’ determination is made. It is only a special and rare window that is given to the party seeking such an order to present material which is critical in the issues before the court.
10. The Court of Appeal had this to say in Peninah Nandako Kiliswa v Independent Elections and Boundaries Commission & 2 others [2014] KECA 807 (KLR),
“Granted, she could not seek to arrest the judgment as the concept of “arresting” judgment is hardly known in our civil jurisprudence. In criminal law, it simply means an act of staying a judgment or refusing to render such judgment after a verdict has been reached in an action at law or a criminal prosecution, because some defect appears on the face of the record, that if a decision is made, would make it erroneous or reversible. The absence of the concept in our rules on civil practice is perhaps explicable on the basis that while before delivery of judgment there is no judgment that can be stopped or “arrested”, on the other hand, once judgment is delivered, the question of “arresting” it cannot not arise because at that stage the Court is functus officio and an attempt to “arrest” the judgment would be like trying to lock the stable door after the horse has bolted.”
11. This view of the Court of Appeal was taken following its citation with approval of the decision of the Supreme Court of Nigeria in USIKARO V. ITSEKIRI LAND TRUSTEES (1992) 2 N.W.L.R. (Pt. 172) whereby in discussing the inherent power of Court their Lordships said as follows:-
“it is settled that apart from the rules, a Court of Record has an inherent power to postpone the hearing of any matter set down for hearing before it if the just of the case so demands ........”
12. In particular, the lead judgment by Musdapher JCA (as he then was) was deeply insightful when he stated as follows:
“I have, as mentioned above, recounted in great details the conduct of the appellant throughout the trial before the lower Court. In my view, the application to “arrest” the judgment after all the opportunities granted to the appellant which it deliberately refused to take was merely calculated to hinder the due administration of justice. From the records available, the appellant always claimed that they would settle the matter out of court when indeed they merely wanted to delay the due administration of justice. The procedure for arrest of judgment is now hardly known in our Civil jurisprudential system. It is the act of staying a judgment, or refusing to render judgment in an action at law in criminal cases after verdict. It is usually for some intrinsic matter appearing on the face of the record, which would render the judgment if given erroneous or reversible. Under the old Common Law rule the procedure for arrest of judgment is not peculiar to the criminal cases alone, it was available in civil cases under the Old Common Law Rules, but the procedure is alien to the rules of Court and does not apply in civil matters. See Bob-Manuel v. Briggs (1995) 7 NWLR (Pt.409) 537. The application made to arrest the judgment is accordingly misconceived both in law and in fact. The appellant had been given ample opportunity to defend the claims made against them and also to prosecute their Counter-claim. The appellants merely refused to use the opportunity given them. Under the circumstances, the learned trial Judge was fully justified to have (1) closed the defence and (2) concluded that the appellants had no evidence to offer on their pleadings. In the end, reject the complaint under this issue and resolve the same against the appellant.”
13. In my humble view, the power of a court to arrest judgment that it is about to deliver exists but must always be used sparingly. If this court were to agree with the Petitioner that proceeds to deliver the judgment and then the proposed party moves the court, it would mean there would be no judgment to arrest in those circumstances as the horse would have bolted. On this, I agree with the opinion of my learned sister Maureen Odero J as she gave it in In re Estate of Bernard Kariuki Thoronja (Deceased) (Succession Cause 1234 of 2007) [2022] KEHC 12850 (KLR) (Family) (5 August 2022) (Ruling) where the learned judge held:
“Clearly, thereof the powers granted to a court to arrest a decision ought to be used very sparingly and only in order to avoid injustice or hardship to a litigant. Such power ought only be exercised in cases of inadvertence or excusable mistake or error, but not to assist a litigant who is intent on abusing the court process or who is invoking said power merely in an attempt to obstruct and/or delay the course of justice.”
14. Also, in Musa Misango – vs – Erica Musigire & other [1966] EA 390, Hon Sir Udo Udoma Chief Justice of Uganda slated as follows:-
“Now it is unquestionable that, both under the inherent power of the court, and also under a specific rule to that effect under the Judicature Act, the court has a right to stop an action at this stage if it is wantonly brought without the shadow of an excuse, so that to permit the action to go through its ordinary stages up to the trial would be to allow the defendant to be vexed under the form of legal process when there could not at any stage be any doubt that the action was baseless. But from this to the summary dismissal of actions because the judge in chambers does not think that they will be successful in the end lies a wide region, and the court have properly considered this power of arresting an action and deciding it without trial as one to be very sparingly used, and rarely, if ever, excepting in cases where the action is an abuse of legal procedure. They have laid down again and again that this process is not intended to take place of the old demurrer by which the defendant challenged the validity of the Plaintiff’s claims as a matter of law. It is evident that our judicial system would never permit a plaintiff to be “driven from the judgment seat” in this way without any court having considered his right to be heard except in cases where the cause of action was obviously and almost incontestably bad.”
15. In Malindi Residents Development Group & another v County Government of Kilifi & 4 others (Environment & Land Petition 6 of 2022) [2025] KEELC 4430 (KLR) (13 June 2025) (Ruling) wherein an application to arrest judgment was made, and the court granted it on a number of conditions, the court had this to say,
“In this court’s view and without appearing to condone intentional or negligent delay of court proceedings, the panacea for delayed justice is an appropriate award for costs. Also, the fact that the respondent is and will remain, as long as the devolution structure remains in place, a critical participant in environmental matters needs not be gainsaid.”
16. In the instant matter I am alive to the fact that the proposed or intended Interested Party has exhibited to this Court a copy of a licence whose date is current while the Petitioner had filed one whose validity date has passed and it formed the basis for it challenging in this Petition the actions of the Respondents. Just as my learned brother judge termed it critical to hear the views of a proposed party who sought to arrest the judgment in that matter (above) so it is for this court which cannot close its eyes and ears to a party yearning to be heard as rules of natural justice demand. Moreover, it is not denied that the allegation that the intended Proposed Interested Party came to know of the existence of this Petition a day before the delivery of the judgment sought to be postponed or arrested. It would be remiss of this court to ignore such a critical point and deny a party who appears to have subsisting rights which may be substantially affected by the outcome of the decision of this court an opportunity to state its case for being joined to the matter before any fundamental steps such as a delivery of a judgment are made. As to the merits or otherwise of the application, this court shall not state much about it. I make that finding because most of the submissions and the two decisions relied on by the Petitioner were regarding the merits or demerits of the intended Interested Party’s application to be enjoined to this Petition. This Court has not reached that stage. Thus, they were prematurely presented to this court.
17. The upshot is that the judgment due for delivery herein arrested and postponed pending the filing and determination of a formal application by Hengnuo Kenya Company for orders that it be joined as an Interested Party.
18. The application be filed and served within the next ten (10) days. This matter be mentioned on 3rd November 2025 to confirm compliance with the orders above.
19. Costs of this application to be in the Cause.
20. Orders accordingly.
Judgment dated, signed and delivered virtually via the Teams Platform this 16th day of October, 2025.
Hon. Dr. iur Nyagaka
Judge
In the presence of,
Ms. Lola, Court Assistant
Mr. Thuku Advocate for the Petitioner
Mr. Wabwire State Counsel h/b for Ms. Opiyo State Counsel for the Respondents
Mr. M. Odero Advocate for the proposed Interested Party
'