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ELCDismissedEnvironment & Land Case 44 of 2017· [2022] KEELC 14669 (KLR)

Nzimbi v Ndetei & 2 others

Environment and Land Court
2 November 2022
3,364 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to undo a 2017 eviction judgment, ruling the landowners had been represented throughout and waited too long to complain.

What this practically means

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Executive summary

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The Defendants/Applicants moved the Environment and Land Court at Makueni by Notice of Motion dated May 10, 2022 seeking leave for new advocates to come on record, a stay of execution, and setting aside of a summary judgment dated October 12, 2017 which had ordered their permanent eviction from LR No Makueni/Kivani/1082, execution having been completed on January 23, 2020. They argued they were never served or informed of the summary judgment proceedings by their former advocates, that the suit was res judicata on account of Machakos HCCC No 225 of 2008, that their constitutional right to own land was at stake, and that their former advocates' mistakes should not be visited upon them. The Plaintiff/Respondent opposed, contending the Defendants were represented throughout, filed a replying affidavit and submissions to the summary judgment application, that a similar application was struck out by Justice Mbogo on February 8, 2022, that execution was complete, and that the application was res judicata and an abuse of process. Justice Murigi found from the record that the Defendants' advocates were duly served and participated in the proceedings, that res judicata ought to have been raised in the earlier replying affidavit, and that there was unexplained delay of over four years. The court held the application was in substance an appeal against a ruling of a court of concurrent jurisdiction and dismissed it with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether there is sufficient cause to set aside the summary judgment dated October 12, 2017

Holding

No sufficient cause; the application was dismissed

Reasoning

The court found from the record that the Defendants' advocates were served with the summary judgment application, filed a replying affidavit and submissions, and participated throughout. Claims of non-service and ignorance by former advocates were contradicted by the record. The application was in substance an appeal against a ruling of a court of concurrent jurisdiction, which the court cannot entertain. There was also unexplained delay of over four years.

02

Whether the res judicata claim based on Machakos HCCC No 225 of 2008 justified setting aside

Holding

Rejected; res judicata should have been raised in the replying affidavit to the summary judgment application

Reasoning

The court held that the Defendants, having filed a replying affidavit to the summary judgment application through counsel, ought to have raised res judicata at that stage. Raising it years later in an application to set aside could not cure the omission nor constitute sufficient cause.

p. 6
03

Whether delay in bringing the application disentitled the Defendants

Holding

Yes; unexplained delay from October 2017 to May 2022 weighed against setting aside

Reasoning

The court noted the ruling was delivered on October 12, 2017 and the present application was filed in May 2022 with no explanation for the delay, which weighed heavily against the exercise of discretion in the Defendants' favour.

Legal principles established

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  • A court cannot set aside a summary judgment by sitting on appeal against a decision of a court of concurrent jurisdiction
  • A party who was represented and participated in proceedings cannot later claim ignorance of those proceedings
  • Res judicata must be raised at the earliest opportunity, in reply to the application in which it arises

Court orders

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  1. 1.The Notice of Motion dated May 10, 2022 is dismissed with costs to the Plaintiff/Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Constitution of Kenya, 2010Article 47
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 36 Rule 10
  • Civil Procedure Rules, 2010Order 51 Rule 1

Cases cited (9)

  • Ternic Enterprises Limited v Waterfront Outlets Limited
    [2018] eKLR
  • Bank of Africa Kenya Limited v Put Sarajevo General Engineering Co Ltd & 2 Others
    [2017] eKLR
  • Enock Kirao Muhanji v Hamid Abdalkla Mbarak
    [2013] eKLR
  • JAM v BOS
    [2019] eKLR
  • Patriotic Guards LTD v James Kipchirchir Sambu
    [2018] eKLR
  • SK Tarwadi v Veronoica Muehlemann
    [2019] eKLR
  • The members of the Local Congregation of Buruburu Community Centre Church of God in East Africa (Kenya) v Executive Council of the members of the Local Congregation of Buruburu Community Centre Church of God in East Africa Kenya
    [2020] eKLR
  • Murithi Ngwenya v Gikonyo Mwangi & 2 Others
    [2018] eKLR
  • Halima Bare & 13 Others v Maendeleo Ya Wanawake Organization
    [2004] eKLR
Jurisdiction invoked
Articles 159(2) and 47 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6, Order 36 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Nzimbi v Ndetei & 2 others", Case Analysis (2022). Environment & Land Case 44 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14669/eng@2022-11-02

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