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ELCOtherNot stated in extract (Notice of Motion dated 8th June, 2016)· [2016] KEELC 41 (KLR)

Ruare Ranch Limited v David Muchuiri Kabugi & 2 others [2016] KEELC 41 (KLR)

Environment and Land Court
2 December 2016
LWL N Waithaka
1,214 words in judgment
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The bottom line

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The Environment and Land Court in Nyeri refused to rule on cancelling a title deed until the land buying company's lawyers were properly served and heard.

What this practically means

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Executive summary

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This is an interlocutory ruling arising from a Notice of Motion filed in June 2016 by the substituted defendants (applicants) seeking, principally, that the court stay execution of and recall the order dated 19th February 2004, the vesting order of 29th June 2004, and all consequential execution proceedings. The applicants contend that although Tunoi J (as he then was) granted exparte judgment on 8th October 1990 ordering transfer of LR 3308/3 to the plaintiff company, that judgment was set aside by the same judge on 19th February 1991, rendering the 2004 orders and subsequent execution (including a transfer signed by the executive officer in 2013) invalid. The applicants discovered the change in the property's status during negotiations with KETRACO over wayleave compensation. The application was unopposed; the process server could not locate the plaintiff company and service was effected by substituted advertisement in the Standard newspaper. Before ruling, the court suo motu perused the record and found that Waiganjo Wachira & Company Advocates had come on record for the plaintiff on 22nd February 2016, before the motion was filed, yet were not served. Given the allegations against the plaintiff and its counsel, and because the prayers would have the effect of cancelling a title deed, Waithaka J declined to determine the merits, directing instead that Waiganjo Wachira & Company Advocates be served and the matter mentioned for directions on 6th March 2017, while deferring the ruling and extending the interim orders to that date. The application therefore remains pending and undetermined.

Key legal issues

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01

Proper service on advocates on record

Holding

The court deferred ruling on the merits because the plaintiff's current advocates on record were not served with the application

Reasoning

The court, on its own perusal of the record, found that Waiganjo Wachira & Company Advocates had come on record for the plaintiff before the motion was filed, yet service was effected only by substituted advertisement and the prior advocates declined service. Given the gravity of the relief sought - cancellation of a title deed - the court held the new advocates must be heard before determination.

p. 3
02

Validity of post-judgment orders after setting aside of exparte judgment

Holding

Not determined; the applicant contends the 2004 orders are invalid following the 1991 setting aside of the exparte judgment

Reasoning

The application argues that since Tunoi J set aside the exparte judgment on 19th February 1991, the subsequent order of 19th February 2004, the vesting order of 29th June 2004 and execution proceedings lack foundation. The court did not rule on this, deferring the matter for service and further directions.

p. 1

Legal principles established

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  • A party's advocates on record must be served with an application before the court rules on it, especially where the relief sought would cancel a title

Court orders

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  1. 1.The firm of Waiganjo Wachira & Company Advocates to be served with the instant application
  2. 2.Matter to be mentioned for directions on 6th March, 2017
  3. 3.Writing of the ruling deferred
  4. 4.Interim orders extended until 6th March, 2017
Jurisdiction invoked
Inherent jurisdiction and civil procedure to stay execution and set aside orders; not expressly cited in extract

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ruare Ranch Limited v David Muchuiri Kabugi & 2 others [2016] KEELC 41 (KLR)", Case Analysis (2016). Not stated in extract (Notice of Motion dated 8th June, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/41/eng@2016-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.