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ELCDismissedELC Appeal No. 5 of 2020· [2021] KEELC 2991 (KLR)

Martin Muema Musyimi v Esther Wangechi Maiyani & 2 others [2021] KEELC 2991 (KLR)

Environment and Land Court
13 April 2021
KBK. Bor
2,189 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Nairobi court confirmed that repossessing land for unpaid rates fails unless the owner is properly served with notice, so the buyer lost the plot.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nairobi against the judgment of Honourable Mburu, Senior Principal Magistrate, delivered on 5 April 2019 in Milimani CMCC No. 1965 of 2012, in which the 1st Respondent had obtained a declaration that she was entitled to exclusive possession of plot C1-140 in Kayole. The Appellant had purchased the plot from the 3rd Respondent, who acquired it at an auction after the 2nd Respondent repossessed it for alleged rates arrears. The Appellant contended that the trial court erred in finding the auction void and in holding that no sufficient notice was given. The 1st Respondent maintained she was allocated the plot in 1987, paid what was due, and received no notice; the 2nd Respondent asserted it served notice through the Daily Nation and relied on its Housing Development Committee minutes; the 3rd Respondent defended the auction sale. The court framed the issue as whether the plot was repossessed after notice to regularize the account. It found no newspaper advert was produced, the purported advert lacked the newspaper's name and publication date, and there was a contradiction between the 2nd Respondent's trial evidence and its submissions. The court noted the 2nd Respondent could have applied under Order 42 Rule 27 to admit the notice as additional evidence but did not. Documentary inconsistencies - identical dates for allocation, sale agreement and power of attorney, and alterations on the booklet - further undermined the repossession. The court held the Rating Act's service procedure was not proved to have been followed, and dismissed the appeal with costs to the 1st Respondent, affirming the trial judgment.

Key legal issues

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01

Whether notice of repossession for rates default was served on the 1st Respondent

Holding

Service of the notice was not proved; no newspaper advert was produced and the purported advert bore neither the newspaper's name nor the publication date

Reasoning

The trial record showed no newspaper advert was produced; the purported advert lacked the name of the newspaper and date of publication. There was a contradiction between the 2nd Respondent's trial evidence (that no notice was necessary) and its submissions claiming service via the Daily Nation. The Rating Act prescribes a service procedure that was not shown to have been followed, and the 2nd Respondent's acceptance of the 1st Respondent's 2010 payments undermined the claim of repossession.

p. 3
02

Whether additional evidence (the alleged Daily Nation notice) could be relied on in submissions on appeal

Holding

The 2nd Respondent could have applied under Order 42 Rule 27 to admit the notice but did not do so, so it could not rely on it on appeal

Reasoning

Order 42 Rule 27 permits an appellate court to admit additional evidence where the trial court refused to admit it. The 2nd Respondent, whose notice had been expunged at trial, never made such an application and therefore could not prove service through that document on appeal.

p. 2
03

Whether the documents relied on by the 2nd and 3rd Respondents showed a lawful repossession and allocation

Holding

The documentary record contained inconsistencies — contradictory dates, altered plot details, and a booklet produced without objection — that undermined the claim of lawful repossession and resale

Reasoning

The witness statement suggested the plot was allocated to the 3rd Respondent on 29/7/2010 upon payment, yet a sale agreement and power of attorney in favour of the Appellant bear the same date, which was inconceivable. The booklet had altered plot details and inconsistent dates. Nothing showed the 2nd Respondent objected to production of the booklet at trial.

p. 3

Legal principles established

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  • An appellate court may admit additional evidence under Order 42 Rule 27 where the trial court refused to admit it, but a party must apply for that relief rather than merely argue the excluded document in submissions
  • Repossession of a plot for rates default requires proof of service of notice in the manner prescribed by the Rating Act; absent such proof, the repossession and subsequent allocation are ineffective

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the 1st Respondent

Authorities

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Legislation

  • Rating ActSection 17
  • Land ActSection 12
  • Land ActSection 43
  • Civil Procedure RulesOrder 42 Rule 27
On appeal from
Milimani Chief Magistrates Court
Commercial Case No. 1965 of 2012
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over the subordinate court (appeal under the Civil Procedure Act/Rules, Order 42)

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, "Martin Muema Musyimi v Esther Wangechi Maiyani & 2 others [2021] KEELC 2991 (KLR)", Case Analysis (2021). ELC Appeal No. 5 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2991/eng@2021-05-13

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