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ELCDismissedNairobi ELC No 31 of 2009· [2021] KEELC 3354 (KLR)

Ann Karura Kibati v Samuel Bede Ogembo [2021] KEELC 3354 (KLR)

Environment and Land Court
5 May 2021
BEB M Eboso
1,848 words in judgment
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The bottom line

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A Kenyan land buyer's 2011 judgment and title stood firm after the defendant's fraud claims were disproven by the court's own records showing he fully participated in the case.

What this practically means

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Executive summary

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By a ruling delivered on 5 May 2021, B M Eboso J dismissed two applications by the defendant, Samuel Bede Ogembo, seeking to unsettle a final judgment of 22 July 2011 by Mbogholi Msagha J which decreed specific performance of a sale agreement over LR No 2259/660 (a subdivision of LR No 2259/141) in favour of the plaintiff, Ann Karura Kibati. Title had issued to the plaintiff on 19 August 2014. The defendant's application dated 31 October 2019 sought setting aside of the 2011 judgment, cancellation of the title and consolidation of related files, on the principal ground that the proceedings were taken and prosecuted without his knowledge, involvement or sanction and in fraud. His application dated 24 June 2020 sought joinder of Dr William Miriti Kiraitu as an interested party, an urgent fresh trial at Nyamira Court owing to his age and ill-health, a declaration that the property was his, and conservatory orders. The plaintiff opposed through grounds of opposition, arguing res judicata and abuse of process. Examining the court record, the court found the defendant had filed a statement of defence, a replying affidavit, changed advocates, filed an affidavit adopted as his testimony, exhibited documents and called Kelvin Mogeni as DW2, and had conceded in submissions that he instructed Mr Mogeni. The allegations of fraud and non-participation were therefore untruthful. There being no basis to set aside the judgment, the second application necessarily failed. Both applications were dismissed with costs to the defendant's account.

Key legal issues

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01

Whether the judgment of 22/7/2011 was procured ex parte and fraudulently without the defendant's knowledge

Holding

No; the record shows the defendant filed a defence, replying affidavit, changed advocates, filed an affidavit adopted as testimony, exhibited documents, and called a witness

Reasoning

The court examined the file: a statement of defence and replying affidavit filed through Kelvin Mogeni Advocates in 2009; a notice of change of advocates to Julius Nyakiangana & Co in 2011; a signed affidavit and witness statement filed through the new firm; the affidavit adopted as the defendant's testimony; exhibits 1-8 marked; and Kelvin Mogeni testifying as DW2. The defendant also conceded in submissions that he instructed Mogeni to act. This uncontroverted record falsified the claim of fraud and lack of involvement.

p. 3
02

Whether the judgment should be disturbed and a fresh trial ordered

Holding

No; there was no proper basis for interfering with the judgment, so both applications were rejected and the prayers for joinder, fresh trial and conservatory orders fell away

Reasoning

Once the principal ground (fraud/lack of knowledge) failed, there was no basis to set aside the 2011 judgment. The second application was wholly dependent on the success of the first; absent setting aside, prayers for joinder of an interested party, priority hearing at Nyamira, a declaration of ownership and conservatory orders could not issue.

p. 3

Legal principles established

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  • A party who participated in proceedings, directly and through counsel, cannot obtain setting aside of the resulting judgment on the basis that the proceedings were conducted without his knowledge or were fraudulent
  • Reliefs premised on setting aside a judgment become unavailable where the judgment stands

Court orders

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  1. 1.The defendant's two applications dated 31/10/2019 and 24/6/2020 are both dismissed for lack of merit
  2. 2.The defendant shall bear costs of the two applications
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit and applications therein

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, "Ann Karura Kibati v Samuel Bede Ogembo [2021] KEELC 3354 (KLR)", Case Analysis (2021). Nairobi ELC No 31 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3354/eng@2021-05-05

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