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ELCAllowedEnvironment and Land Appeal E016 of 2022· [2023] KEELC 20049 (KLR)

Lelo Investments Ltd v City Council of Nairobi & 5 others

Environment and Land Court
21 September 2023
LMLucy N. Mbugua
3,924 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court threw out a 2008 land judgment won without proper service, restoring the property owners' right to defend their case.

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 a ruling of the Chief Magistrates' Court delivered on 17 February 2022 dismissing Lelo Investments Ltd's application dated 2 June 2021 in CMCC No. 3033 of 2008 (Nairobi City Council v Habib Khalfan & another). The application had sought joinder of Lelo Investments, Highway Dynamics Ltd and Ideal Auctioneers, striking out of the plaint and proceedings, setting aside of the ex-parte judgment of 6 August 2008, the public auction of 18 June 2009 and the vesting order of 10/17 November 2009, and a mandatory injunction. The appellant contended the defendants in the 2008 suit were not the registered owners, having transferred the land to Highway Dynamics in 1995, which transferred it to the appellant in 2016. The purchaser, Stephen Karanja Kungu, opposed, citing delay, failure of due diligence and unproven fraud. The court, re-evaluating the record as a first appellate court, found the 2008 proceedings deeply irregular: defective summons described as a sham, hearing and judgment within a month, a one-sentence judgment, and premature execution steps. It held the appellants were condemned unheard contrary to Article 50(1) and natural justice. Allowing the appeal, the court set aside the 2022 ruling, the 2008 judgment and all consequential orders, joined the new parties, directed amendment of pleadings within three months failing which the suit would stand dismissed, remitted the file to the magistrates' court, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the ex-parte judgment of 6.8.2008 was irregular

Holding

Yes - the judgment was irregular for want of proper service, invalid execution proceedings and being against parties who were not the registered owners

Reasoning

The summons were dated 12.6.2007 but served 13.6.2008, requiring appearance on 10.7.2008 - the hearing date itself - and did not invite appearance or defence. Judgment followed within a month in a single sentence. The Notice to Show Cause was extended within a month of the decree contrary to Order 22 rule 18. The proceedings appeared choreographed to dispose of the property with speed.

p. 7
02

Whether the delay in seeking review was fatal

Holding

No - despite unreasonable delay, the court had to undo the irregular judgment and all consequential orders

Reasoning

Although the appellant could not show the new evidence could not have been found earlier with due diligence, and there was unreasonable delay, the court found the root cause of the dispute had to be interrogated to end proliferating litigation, and the right to a fair hearing under Article 50(1) required the irregular judgment to be undone.

p. 7
03

Whether the defendants in the 2008 suit were the real owners of the suit property

Holding

The court found the appellant's averments buttressed by the defendants' total non-appearance and the purchaser's failure to obtain registration despite the vesting order

Reasoning

The appellant traced ownership from 1953, showing transfer to Highway Dynamics Ltd in 1995 and to itself in 2016. The purchaser, though granted a vesting order on 10.11.2009, was never registered as owner. The defendants in suit 3033 of 2008 never appeared in any proceedings, supporting the claim they were not the owners.

p. 6

Legal principles established

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  • A judgment entered without proper service of summons to enter appearance is an irregular judgment liable to be set aside ex debito justitiae
  • A first appellate court must re-evaluate and subject the evidence to a fresh analysis to reach an independent conclusion

Court orders

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  1. 1.The Ruling dated 17.2.2022 in CMCC 3033 of 2008 is set aside and the application dated 2.6.2021 is allowed
  2. 2.The Judgment delivered on 6.8.2008 in CMCC 3033 of 2008 and all consequential orders are set aside
  3. 3.Parties in prayers 3, 4 and 5 of the application are joined in CMCC 3033 of 2008 as defendants
  4. 4.Purchaser Stephen Karanja Kungu is joined in the suit as an Interested Party
  5. 5.The plaintiff in CMCC 3033 of 2008 to amend pleadings to include the new parties within Three Months, failing which the entire suit shall stand dismissed
  6. 6.The file to be transmitted back to the City Court Magistrate's court for hearing and determination based on the amended pleadings
  7. 7.Each party to bear their own costs of the suit before the Trial Court and in this Appeal
  8. 8.A copy of the Judgment to be placed in the Trial Court's file forthwith
On appeal from
Chief Magistrates' Court of Kenya at Nairobi City Court
NRB CMCC No. 3033 of 2008
Jurisdiction invoked
First appeal from the Chief Magistrates' Court under the Environment and Land Court's appellate jurisdiction

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, "Lelo Investments Ltd v City Council of Nairobi & 5 others", Case Analysis (2023). Environment and Land Appeal E016 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20049/eng@2023-09-21

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