Merry Beach Limited v Attorney General, Commissioner of Lands, Chief Land Registrar, District Land Registrar, Kilifi, Director of Physical Planning, Direcotr of Surveys, Director of Land Adjudication & Settlement, Municipal Council of Malindi, Officer Commanding of Police Division, Malindi, Gimalowi Company Ltd, Exempler Limited, Shariff M. Mohamed, P. N. Ndolo, La Mariana Ltd, Malindi Musketters Ltd, Sharif N. Habib, Hildegard Jung, Daniel Ricci & Itakey Investments Limited (? 5 of 2011) [2016] KEELC 575 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a demolition judgment because the property owner was never given a chance to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant is a necessary party who ought to be heard before execution of the mandatory injunction
The Applicant is a necessary party; the judgment would demolish its buildings without it being heard, breaching natural justice and Article 50(1)
The court found that the Applicant purchased the suit properties from Kenya Commercial Bank by registered transfers on 18th July 2014, obtained title free of encumbrances, and developed the land with County Government and NEMA approvals. The Petitioner never served the Bank or the Applicant. Since the mandatory order was final in nature and would result in demolition of the Applicant's buildings without a hearing, the Applicant had a right to be heard and ought to be joined.
Whether the court retains power to set aside its own judgment after delivery
Yes; the court has inherent jurisdiction to set aside its judgment where it will affect a party who should have been heard but was not
The court held that delivery of judgment does not divest it of the ability to reopen a case where a party entitled to be heard was not joined. It would be a travesty of justice to hold otherwise, especially where a necessary party was omitted from the proceedings. The court distinguished between the merits of the Petition, which remain to be determined afresh, and the procedural right of the Applicant to participate.
Legal principles established
#- A party should not be condemned unheard; natural justice and Article 50(1) guarantee a right to be heard before adverse orders are made against a party.
- A court retains inherent jurisdiction to set aside its own judgment where the judgment will affect a party who should have been heard but was not heard.
Court orders
#- 1.The Applicant, Itakey Investments Limited, is joined as a party to the proceedings
- 2.The Judgment and decree of 30th October, 2015 is set aside to enable the Applicant participate
- 3.The matter to be heard afresh to enable the Applicant participate in the hearing
- 4.No order as to costs
- Jurisdiction invoked
- Inherent jurisdiction of the court to set aside its own judgment, together with Article 50(1) of the Constitution and Rule 5(d) and (e) of the Mutunga Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Merry Beach Limited v Attorney General, Commissioner of Lands, Chief Land Registrar, District Land Registrar, Kilifi, Director of Physical Planning, Direcotr of Surveys, Director of Land Adjudication & Settlement, Municipal Council of Malindi, Officer Commanding of Police Division, Malindi, Gimalowi Company Ltd, Exempler Limited, Shariff M. Mohamed, P. N. Ndolo, La Mariana Ltd, Malindi Musketters Ltd, Sharif N. Habib, Hildegard Jung, Daniel Ricci & Itakey Investments Limited (? 5 of 2011) [2016] KEELC 575 (KLR)", Case Analysis (2016). Not stated in the judgment (Notice of Motion dated 5th November, 2015 within a Petition filed 19th May, 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/575/eng@2016-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.