Eastside Development Limited v Nairobi City County & another [2022] KEELC 1106 (KLR)
The bottom line
#The court agreed the magistrate ignored key evidence but sent the case back for a fresh hearing rather than deciding who wins.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in ignoring the Appellant's replying affidavit and submissions
The lower court erred: the replying affidavit dated 19th October 2018 was on record and served, yet the magistrate held no response was filed and failed to consider the pleadings and evidence on record
The High Court record showed the Appellant, enjoined as Interested Party, filed a replying affidavit and written submissions which were served on the 2nd Respondent. The magistrate nonetheless stated no response was filed and proceeded without that evidence, an omission that may have occasioned an injustice to the Appellant and vitiated the findings on advertisement and payment.
The appropriate remedy where a lower court fails to consider evidence on record
Rather than setting aside the Ruling and determining the merits, the proper course was to remit the 2nd Respondent's application for rehearing before a different magistrate
Because the magistrate did not consider the Appellant's affidavit and annexures, the appellate court could not say the findings would have been the same had the evidence been considered. The interests of justice therefore favoured a de novo rehearing of the application dated 12th September 2018, before another magistrate to avoid any appearance of bias.
Parties' contentions on jurisdiction and setting aside of the sale absent a prayer (argued but not determined)
The Appellant argued the magistrate lacked jurisdiction to set aside a sale already confirmed by vesting order under Order 22 Rule 77(3) and erred in granting relief not sought; the 2nd Respondent maintained the sale was flawed and its remedy lay in damages against the 1st Respondent
The court did not determine these merits; it found the lower court's failure to consider the record made it inappropriate to resolve them at that stage, and remitted the application for rehearing.
Legal principles established
#- Courts are obligated to consider responses filed in respect of applications before them; failure to do so may occasion an injustice
- A decision given on a claim or defence not pleaded amounts to a determination made without hearing the parties
Court orders
#- 1.The Appellant's Appeal is dismissed
- 2.The Application dated 12th September, 2018 in the First Magistrates Court at Nairobi Civil Suit No. 20 of 2013 is remitted back for re-hearing by any other magistrate other than Hon. S. Muchungi
- 3.Each party to bear his/its own costs
- On appeal from
- Senior Resident Magistrate's Court (First Magistrates' Court at Nairobi)
- Civil Suit No. 20 of 2013 (Ruling by Hon. S. Muchungi dated 23rd January 2020)
- Jurisdiction invoked
- First appeal from the Senior Resident Magistrate's Court to the Environment and Land Court (statutory first appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eastside Development Limited v Nairobi City County & another [2022] KEELC 1106 (KLR)", Case Analysis (2022). ELC Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1106/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.