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ELCPartially AllowedNot stated in the judgment (application dated 24th April, 2018)· [2018] KEELC 101 (KLR)

Mohamed Ghani v Victor Kibet Seronei & another [2018] KEELC 101 (KLR)

Environment and Land Court
21 November 2018
MOM.A ODENY
1,225 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a judgment that affected land owned by someone who was never heard in the original case.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Eldoret (M.A Odeny, J) on a Notice of Objection/application dated 24th April, 2018 brought by an Objector under Order 22 Rule 51 of the Civil Procedure Rules 2010. The Objector sought restraint of the Registrar from effecting changes on the title, stay of execution of a judgment and decree issued on 22nd February 2018, setting aside of the judgment and decree to the extent it touched his property, and a hearing. The matter had proceeded ex-parte as the defendant, though served, neither entered appearance nor filed a defence. The Objector, through Mr Maritim, submitted that he held a duly registered title and a charge in favour of Credit Bank Ltd, having acquired the land through sale and transfer, and that the plaintiff had made fundamental non-disclosures. Respondent's counsel opposed, arguing lack of locus standi (relying on EL BUSSAIDY v COMMISSIONER OF LANDS & OTHERS (2002) 1 KLR 508) and fraudulent acquisition of the Objector's title without Land Control Board consent. The court framed four issues but determined two: whether the Objector established a legal or equitable interest, and whether he was entitled to setting aside of the judgment. The court found the Objector had established a legal and equitable claim warranting a hearing, criticised the plaintiff for failing to conduct an official search and enjoin the registered owner, and allowed the application as prayed. The Objector was granted leave to file his papers within 14 days.

Key legal issues

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01

Whether the Objector established a legal or equitable interest in the suit property attached in execution

Holding

Yes. The Objector filed the objection notice as required by Order 22 Rule 51, and attached a title to the suit property registered in his name on 31st July 2015, together with evidence of a charge in favour of Credit Bank Ltd.

Reasoning

The court found the Objector had complied with Order 22 Rule 51 by giving notice of objection. The Objector produced a certificate of title registered on 31st July 2015 and a certificate of official search showing a charge by Credit Bank Ltd. The plaintiff's allegation of fraudulent acquisition was held to be a question of fact requiring interrogation. The court concluded the Objector had established a legal and equitable claim worth hearing.

p. 2
02

Whether the Objector is entitled to have the ex-parte judgment and decree set aside

Holding

Yes. Having found the Objector has an equitable claim, he is entitled to an order setting aside the judgment, particularly as the plaintiff failed to carry out an official search and enjoin the registered owner.

Reasoning

The court held that once a legal and equitable claim is established, the Objector is entitled to have the judgment set aside to enable him be heard. The court criticised the plaintiff for failing to conduct an official search, which would have revealed the registered owner and allowed him to be enjoined in the suit. The application was accordingly allowed as prayed.

p. 2

Legal principles established

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  • Any person claiming a legal or equitable interest in property attached in execution of a decree may, prior to payment out of the proceeds of sale, lodge an objection under Order 22 Rule 51 of the Civil Procedure Rules 2010.
  • A party who fails to carry out an official search on the suit property before obtaining an ex-parte judgment cannot complain where an objector later establishes an interest warranting a hearing.

Court orders

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  1. 1.The application dated 24th April, 2018 is allowed as prayed
  2. 2.The judgment and decree issued on 22nd February, 2018 is set aside to the extent that it touches the property of the Objector
  3. 3.Parties granted a hearing on the Objector's claim to the suit property
  4. 4.The Objector is granted leave to file his papers, if any, within the next 14 days

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 22 Rule 51

Cases cited (1)

  • EL BUSSAIDY VS COMMISSIONER OF LANDS & OTHERS
    (2002) 1 KLR 508
Jurisdiction invoked
Order 22 Rule 51 of the Civil Procedure Rules 2010 (objection to attachment of property in execution of a decree)

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, "Mohamed Ghani v Victor Kibet Seronei & another [2018] KEELC 101 (KLR)", Case Analysis (2018). Not stated in the judgment (application dated 24th April, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/101/eng@2018-11-21

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