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ELCAllowedEldoret CMCC No. 269 of 2014 (related suit; ELC Appeal No. 7 of 2014 referenced)· [2017] KEELC 2726 (KLR)

William Chesilut Lelei v Jacob Kipketer Sisey, Eco Bank Kenya Ltd & Watts Auctioneers [2017] KEELC 2726 (KLR)

Environment and Land Court
31 March 2017
2,412 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, William Chesilut Lelei, a guarantor of a loan facility of about Kshs.3,993,186.00 advanced by the 2nd defendant to the 1st defendant, charged his land, Eldoret Municipality Block 21 (King'ong'o) 2058, as collateral. After the 1st defendant's injunction suit in Eldoret CMCC No. 269 of 2014 and a pending appeal (ELC Appeal No. 7 of 2014), the 1st and 2nd defendants entered a consent compromising both matters without the plaintiff's involvement, upon whose default the suit property was advertised for auction on 16th December 2016. The plaintiff sought temporary and permanent injunctions and a declaration discharging him as guarantor. The 2nd defendant opposed, contending the court, having settled the appeal by consent, was functus officio; that the proper remedy was review under Order 45; and that the application was an afterthought and abuse of process. The court framed three issues: jurisdiction, the proper procedural avenue, and whether to grant a temporary injunction. It held it had jurisdiction under Article 162(2)(b), section 13 of the ELC Act and section 150 of the Land Act, the 2nd defendant having confused res judicata with jurisdiction. Declaratory reliefs by a non-party could only be pursued by plaint, not review, so the fresh suit was proper. On the injunction, the plaintiff established a prima facie case, likely irreparable harm (his right of redemption affected without his knowledge and no valuation evidence), and the balance of convenience favoured him as he was in possession. The application was allowed with costs in the cause.

Key legal issues

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01

Jurisdiction of the ELC over the dispute

Holding

The court has jurisdiction as the dispute concerns title to land between chargor and chargee.

Reasoning

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.

p. 4
02

Proper procedural avenue to challenge the consent order

Holding

A fresh suit by plaint is proper and regular for declaratory reliefs sought by a non-party.

Reasoning

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.

p. 4
03

Temporary injunction

Holding

Injunction granted: prima facie case, irreparable harm and balance of convenience established.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)(b)
  • Environment and Land Court Actsection 13
  • Land Act No. 6 of 2012section 150
  • Civil Procedure Rules 2010Order 45
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act

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, "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.