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ELCDismissed· [2020] KEELC 988 (KLR)

Muchangi Nduati Ngingo t/a Muchangi Nduati & Company Advocates v Commissioner of Lands & 2 others [2020] KEELC 988 (KLR)

Environment and Land Court
8 October 2020
1,990 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by S. Okong'o J at Nairobi, dated 8th October 2020, determined two competing applications arising from a judgment delivered on 27th September, 2018 in which the court declared the transfer of LR. No. Ruiru/Kiu Block 4/2006, 2008, 2009, 2010, 2011, 2012 and 2041 by the 2nd defendant to the 3rd defendant illegal, null and void, cancelled the titles and directed the 1st defendant to issue new titles to the plaintiff. The 3rd defendant's Notice of Motion dated 18th June, 2019 sought setting aside of that judgment and decree under Order 12 Rule 7, claiming it first learnt of the suit on 14th June, 2019 and never instructed advocates. The plaintiff opposed, and Steven Muregi Chege of S. M. Chege & Company Advocates swore that his firm acted on instructions, filed appearance and defence, appeared throughout, and was paid Kshs. 60,000/=. Applying Shah v Mbogo and Patriotic Guards Ltd v Sambu, the court held the discretion must be exercised judiciously, found the 3rd defendant was represented and aware of the suit (even attempting to transfer its file in 2015), and dismissed the application as an attempt to delay justice. The plaintiff's Notice of Motion dated 28th August, 2019 sought the 3rd defendant's eviction in enforcement of the decree; the court held that neither the amended plaint nor the judgment contained an eviction order and a court cannot enforce a nonexistent order, suggesting fresh proceedings if eviction were needed. Both applications were dismissed, save for the previously granted leave for Kinyanjui Kirimi & Company Advocates to come on record for the 3rd defendant, with each party bearing its own costs.

Key legal issues

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01

Whether the judgment of 27th September, 2018 should be set aside under Order 12 Rule 7

Holding

Dismissed; the 3rd defendant was served through and represented by instructed advocates and was aware of the suit throughout

Reasoning

The court exercised its discretion under Order 12 Rule 7 judiciously. Evidence from the plaintiff and Steven Muregi Chege advocate showed the firm was instructed, filed a notice of appointment and defence, appeared throughout, was paid Kshs. 60,000/=, and kept the 3rd defendant informed including of judgment. The 3rd defendant had even sought to transfer its file to another firm in 2015. Its claim of first learning of the suit on 14th June 2019 was disbelieved, and no mistake or blunder was pleaded.

p. 2
02

Whether eviction orders could issue in enforcement of the decree

Holding

Dismissed; no eviction order existed in the plaint, judgment or decree

Reasoning

The plaintiff's amended plaint dated 30th April, 2010 did not seek eviction orders. The judgment of 27th September, 2018 cancelled titles and directed issuance of new titles to the plaintiff but contained no eviction order. The decree correspondingly lacked an eviction order, and a court cannot enforce a nonexistent order. The plaintiff was told to institute fresh proceedings if eviction became necessary.

p. 2

Legal principles established

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  • A court's discretionary powers must be exercised judiciously and not capriciously, upon legal principles and with a view to doing real and substantial justice
  • The discretion to set aside an ex parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who has deliberately obstructed or delayed the cause of justice
  • A court cannot enforce an order that does not exist in the judgment or decree

Court orders

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  1. 1.The plaintiff's application dated 28th August, 2019 is dismissed
  2. 2.The 3rd defendant's application dated 18th June, 2019 is dismissed save for the order seeking leave for the firm of Kinyanjui Kirimi & Company Advocates to come on record for the 3rd defendant granted on 18th September, 2019
  3. 3.Each party shall bear its own costs of the two applications

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (2)

  • Patriotic Guards Ltd. v James Kipchirchir Sambu
    [2018] eKLR
  • Shah v Mbogo
    [1967] E.A 116
Jurisdiction invoked
Original civil jurisdiction (land dispute); no constitutional/statutory basis expressly cited in the judgment

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, "Muchangi Nduati Ngingo t/a Muchangi Nduati & Company Advocates v Commissioner of Lands & 2 others [2020] KEELC 988 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/988/eng@2020-10-08

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