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ELCDismissedMombasa ELC No. 151 of 2017 (Application filed 16 December 2020)· [2021] KEELC 1463 (KLR)

Anjeli Limited v Kenga Simba & 12 others; Chengo Omar & 19 others (Intended Interested Parties) [2021] KEELC 1463 (KLR)

Environment and Land Court
7 October 2021
MSMunyao Sila
5,924 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa land court refused to undo a default judgment against 13 defendants, ruling they were properly served and had no real defence — eviction can now proceed.

What this practically means

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Executive summary

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The 13 defendants and 33 intended interested parties applied to set aside an ex parte judgment of 17 September 2020 in which the plaintiff, registered owner of subdivision No. 10271 (original No. 269/54) Section III Mainland North, obtained a permanent mandatory injunction, prohibitory orders and eviction against the defendants. The applicants argued that the Mombasa ELC lacked jurisdiction since the land is in Kilifi County; that the suit was sub judice Malindi ELC No. 23 of 2017; that service was improper; that they had been in long occupation and had a good defence; that interested parties occupying Plots 276 and 277 needed to be enjoined; and that the eviction violated Section 152F of the Land Act. The court framed five issues. It held that under Section 4(3) of the Environment and Land Court Act its jurisdiction is countrywide, the nearest-court Practice Direction being a matter of administrative convenience, and Mombasa was nearer than Malindi. It found the defendants were duly served by substituted service through the Daily Nation and personally with the hearing notice, making the judgment regular and not settable aside ex debito justitiae. The draft defence raised no triable issue: no title, no adverse possession claim, and the Malindi suit concerned different parcels and was decided against the applicants. The intended interested parties were not necessary parties, and no survey was warranted. The application was dismissed with costs, leaving the respondent free to execute the decree.

Key legal issues

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01

Jurisdiction of the ELC to hear a suit where the land lies in another county

Holding

Court properly seized; jurisdiction is countrywide; the Practice Directions on filing in the nearest court concern administrative convenience, not jurisdiction

Reasoning

Section 4(3) of the ELC Act confers jurisdiction throughout Kenya. Paragraph 14 of the Practice Directions directs filing in the nearest ELC, which Mombasa was (suit land ~30km from Mombasa, ~80km from Malindi). Any question of transferring a case between stations is one of administrative convenience, not want of jurisdiction. No law restricts ELC jurisdiction by county boundaries.

p. 4
02

Whether the defendants were duly served with summons and hearing notice

Holding

Duly served - substituted service by Daily Nation advertisement effected summons, and personal service effected the hearing notice; the judgment was regular

Reasoning

Service by advertisement complied with a court order and the law does not question the recipient's literacy. The interlocutory judgment was set aside because the suit was unsuitable for interlocutory judgment, not because service was improper, so no fresh service of summons was required. The affidavit of service showed personal service of the hearing notice on defendants or adult family members under Order 5 Rule 12.

p. 5
03

Whether the court should exercise discretion to set aside the judgment

Holding

Not exercised - the draft defence raises no triable issue: no title shown, no adverse possession claim, sub judice claim fails, and Section 152F of the Land Act does not apply to court decrees

Reasoning

Following Patel v EA Cargo Handling Services, a regular judgment is set aside only where a defence raises a triable issue. Long occupation by forefathers confers no right absent a claim; no counterclaim for adverse possession was pleaded. The Malindi suit concerned different parcels (Plots 268, 269, 276, 299, 300) and was decided against the defendants. Section 152 of the Land Act governs evictions outside court decrees.

p. 5
04

Joinder of intended interested parties

Holding

Refused - they occupy Plots 276 and/or 277, which are not the subject of the suit, and execution is confined to the suit land

Reasoning

The intended interested parties claim occupation of neighbouring plots not in issue in the suit. The respondent can only execute the decree over the suit land (Subdivision No. 10271), so they are not necessary parties and suffer no prejudice from the judgment.

p. 5
05

Whether a survey of the suit land should be ordered

Holding

Refused - no basis shown; execution will be restricted to the suit land

Reasoning

The applicants did not demonstrate any purpose the survey would serve. Their apparent fear that the respondent would execute beyond the boundaries of the suit land is unfounded, since execution of the decree is limited to the suit property.

p. 6

Legal principles established

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  • The Environment and Land Court exercises jurisdiction throughout Kenya; no limitation to a particular county
  • Where a court orders substituted service by advertisement and it is complied with, the defendants are deemed served regardless of literacy
  • A regular ex parte judgment will not be set aside unless a defence on the merits raising triable issues is shown
  • A party duly served who opts not to attend court cannot later claim violation of the right to a fair hearing

Court orders

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  1. 1.The application dated 16 December 2020 is dismissed with costs.
  2. 2.The respondent is free to proceed with execution of the decree.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court Act, Act No. 19 of 2011Section 4
  • Land Act, 2012Sections 152, 152F
  • Civil Procedure RulesOrder 1 Rule 10(2); Order 5 Rule 12; Order 8 Rule 5; Order 10 Rules 4, 6 and 9
  • Practice Directions on Proceedings in the Environment and Land Courts, Gazette Notice No. 5178 of 25 July 2014Paragraph 14

Cases cited (9)

  • Mwalia vs. Kenya Bureau of Standards
    EA LR (2001) 1 EA 148
  • Thayu Kamau Mukigi vs. Francis Kibaru Karanja
    (2013) eKLR
  • Rayat Trading Co. Limited vs. Bank of Baroda & Tetezi House Ltd
    (2018) eKLR
  • Sebei District Administartion vs. Gasyali & others
    (1968) EA 300
  • Patel vs. EA Cargo Handling Services Ltd
    [1974] EA 75
  • George Arab Muli Mwalabu vs. Senior Resident Magistrate Kangundo & 2 Others
    (2019) eKLR
  • Frigoken Limited vs. Value Pak Food Limited
    (2011) eKLR
  • Francis Karioki Muruatetu & Another vs. Republic and 5 others
    (2016) eKLR
  • Omari Hassan Haji vs Safari Kazungu & 49 Others, Malindi ELC No. 23 of 2017
Jurisdiction invoked
Environment and Land Court Act, Section 4(3) - jurisdiction throughout Kenya; Article 162(2)(b) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Anjeli Limited v Kenga Simba & 12 others; Chengo Omar & 19 others (Intended Interested Parties) [2021] KEELC 1463 (KLR)", Case Analysis (2021). Mombasa ELC No. 151 of 2017 (Application filed 16 December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1463/eng@2021-10-07

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