William Chesilut Lelei v Jacob Kipketer Sisey, Eco Bank Kenya Ltd & Watts Auctioneers [2017] KEELC 2726 (KLR)
The bottom line
#A Kenyan landowner who never agreed to a court consent ordering the sale of his land can stop that sale through a fresh lawsuit, not a review application.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the dispute
The court has jurisdiction as the dispute concerns title to land between chargor and chargee.
The 2nd defendant argued the court, having settled the appeal in ELC Appeal No. 7 of 2014 by consent, became functus officio and lacked jurisdiction. The court held the 2nd defendant was confusing res judicata with jurisdiction. The dispute falls under Article 162(2)(b) of the Constitution, section 13 of the ELC Act and section 150 of the Land Act, being a land dispute between chargor and chargee.
Proper procedural avenue to challenge the consent order
A fresh suit by plaint is proper and regular for declaratory reliefs sought by a non-party.
The reliefs, especially relief (c), are declaratory in nature. Declarations cannot be sought on review under Order 45 of the Civil Procedure Rules 2010, particularly by persons who were not parties to the original suit. The plaintiff's election to file a fresh suit to challenge the consent judgment was therefore proper.
Temporary injunction
Injunction granted: prima facie case, irreparable harm and balance of convenience established.
The plaintiff was not party to the consent dated 27th May 2015 yet his registered property was likely to be sold. His right of redemption was affected without his knowledge, no valuation evidence existed, and he is in possession, so damages would be inadequate and convenience favours the injunction.
Legal principles established
#- A fresh suit by a non-party to a consent order challenging that consent may be brought by way of plaint seeking declaratory relief, since review under Order 45 is unavailable to persons who were not parties to the suit.
- A chargor who was not party to a consent varying the terms of the charge has a prima facie case to restrain sale of the suit property.
Court orders
#- 1.Temporary injunction restraining the defendants jointly and severally from selling, auctioning, trespassing on, adversely dealing with and/or offering for sale land known as Eldoret Municipality Block 21 (King'ong'o) 2058 pending the hearing and determination of the suit
- 2.Costs in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Chesilut Lelei v Jacob Kipketer Sisey, Eco Bank Kenya Ltd & Watts Auctioneers [2017] KEELC 2726 (KLR)", Case Analysis (2017). Eldoret CMCC No. 269 of 2014 (related suit; ELC Appeal No. 7 of 2014 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2726/eng@2017-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.