Kencent Holdings Limited & another v Matsese & 330 others & 2 others
The bottom line
#A Kenyan court froze all plot sales in a Mombasa settlement scheme because the company running it ignored earlier court orders requiring reports.
What this practically means
#Executive summary
#Key legal issues
#Compliance with the orders of October 31, 2019
The 2nd plaintiff failed to comply with the orders requiring the enumeration, physical planning, survey and valuation reports to be filed in court within specified timelines
The October 31, 2019 orders required a report to be filed after each specified step of the court-supervised settlement scheme. The court perused the record and the 2nd plaintiff's list of documents dated February 8, 2022 and found none of the required reports filed. The Covid-19 pandemic did not excuse the delay because the plaintiff, being represented, had liberty to apply for extension of time under order 12 but did not do so.
Whether Khaminwa & Khaminwa Advocates were properly on record for the 1st defendants
Leave to come on record was granted despite imperfect compliance with order 9 rule 9, since the consent signed by the outgoing firm showed notice and counsel confirmed from the bar the firm acted for all 1st defendants
Although no further consent was filed after the directions of July 25, 2022, the consent dated July 14, 2022 signed by Mabeya Buti & Company Advocates evidenced the outgoing firm's notice of the incoming firm's intention, and Mr Yose's confirmation from the bar established that the firm sought leave for all the 1st defendants. Counsel was directed to file a proper notice of change of advocates within seven days.
Whether the documents filed by the Attorney General should be struck out
The application to expunge the AG's documents was premature and without merit
Since the reports contemplated by the October 31, 2019 orders are yet to be filed, the documents the AG filed are taken to be in respect of its case. A party cannot cherry-pick which documents the opposing party relies on without demonstrating outright contravention of the Constitution or statutes such as the Evidence Act.
Authority of the deponent Kalama Tsori Weda
The question of the deponent's authority was settled by the further affidavit of April 1, 2022, there being no further challenge
The plaintiffs objected that Kalama Tsori Weda lacked authority to act for the 330 defendants. The requisite authority was annexed to the further affidavit sworn April 1, 2022 and, absent any further challenge by affidavit, the court treated the issue as settled, while cautioning that such documents should always be served on all parties after filing.
Legal principles established
#- Court-ordered reports in a supervised settlement scheme must be filed in court so the court can oversee compliance and parties can scrutinise the process
- A party who cannot comply with court-ordered timelines must apply for extension of time or further directions rather than proceed unilaterally
- A court-supervised settlement process for squatters must involve public participation of the beneficiaries as required by Article 10 of the Constitution
Court orders
#- 1.The 1st defendants' application dated February 17, 2022 struck out with each party bearing their own costs
- 2.The 2nd plaintiff's application dated March 28, 2022 struck out as premature and without merit, with each party bearing their own costs
- 3.The 1st defendants' application dated December 29, 2021 allowed: no further dealing with the suit land or subdivisions likely to affect its legal status until the orders of October 31, 2019 are fully complied with
- 4.The 2nd plaintiff directed to file with the court within 30 days all reports required by the orders of October 31, 2019, including the Enumeration Report, list of squatters for joinder, Physical Planner's Report, Survey Report and Valuation Report
- 5.Letters of offer issued by the 2nd plaintiff over all plots subdivided from the suit property suspended and the sale thereof stayed until further orders of the court
- 6.Each party to bear their own costs in the three applications
- 7.Khaminwa & Khaminwa Advocates granted leave to come on record for all the 1st defendants and directed to file and serve a proper notice of change of advocates within seven days
- Jurisdiction invoked
- Sections 3A, 19(1), (2) and 20(2) of the Environment and Land Court Act and sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; inherent jurisdiction of the ELC over the suit land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kencent Holdings Limited & another v Matsese & 330 others & 2 others", Case Analysis (2023). Environment and Land Case Civil Suit 123 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18455/eng@2023-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.