Conpak Industries Limited v Muturi (Environment and Land Miscellaneous Application E041 of 2021) [2024] KEELC 3510 (KLR)

Environment and Land Court

30 April 2024

EWE.K. WABWOTO

1,288 words in judgment

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The bottom line

A Kenyan court dismissed a landowner's bid to revive eviction orders because the eviction notice was never served on all officials the law requires.

What this practically means

Executive summary

This ruling by the Environment and Land Court (E.K. Wabwoto, J) determined a Notice of Motion dated 26th July 2023 in which the Applicant sought review of a Ruling delivered on 9th March 2023 dismissing the Applicant's Amended Notice of Motion seeking eviction orders in respect of L.R. No. 209/7214, Isiolo Road. The dismissal had been grounded on non-compliance with Section 152E of the Land Act, the court having found the eviction notice was not served as required. The Applicant contended that the eviction notice (Annexure CIL 3) had in fact been served and filed electronically but went missing from the court record despite delivery of hard copies pursuant to earlier directions, and that this constituted an error apparent on the face of the record warranting review under Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) of the Civil Procedure Rules. The Respondent, Samuel Ndebe Muturi, opposed the application, relying on National Bank of Kenya Limited v Ndungu Njau to argue that an error apparent must be obvious and self-evident, and contending that proper service and proof of service were lacking. The court perused the e-filing platform and confirmed the eviction notice dated 9th September 2020 was filed electronically, and that service was effected on the Respondent and the OCPD. However, no evidence proved service on the Deputy County Commissioner, a statutorily prescribed recipient. The court held Section 152E service is mandatory and all-encompassing, such that omission of one prescribed party amounts to insufficient service. Accordingly, there was no error apparent on the face of the record and no compliance with Section 152E. The application was dismissed with each party bearing their own costs.

Key legal issues

Whether there is an error apparent on the face of the record warranting review of the ruling of 9th March 2023

Holding

No error apparent on the face of the record exists; on the court's own perusal of the e-filing platform, service on the Deputy County Commissioner was never proved, so the finding of non-compliance with Section 152E was correct

Reasoning

The court re-examined the record and confirmed the eviction notice dated 9th September 2020 was filed electronically. However, the annexures showed service only on the Respondent and the OCPD, with no affidavit or evidence confirming service on the Deputy County Commissioner. Since Section 152E requires service on all three parties, the original ruling finding non-compliance was not founded on any error, apparent or otherwise, and review under Section 80 and Order 45 Rule 1(1) was not warranted.

p. 3

Whether the Applicant complied with Section 152E of the Land Laws (Amendment) Act No. 28 of 2016

Holding

The Applicant did not comply; service on the Deputy County Commissioner was not proved

Reasoning

The court held that Section 152E obliges a landowner seeking eviction to serve notice on the unlawful occupant, the Deputy County Commissioner and the OCPD. On the record, only service on the Respondent (received by John Muturi) and the OCPD was evident. The process being mandatory and all-encompassing, omission of one prescribed party amounts to insufficient service, so compliance was not established.

p. 3

Legal principles established

Service of an eviction notice under Section 152E of the Land Laws (Amendment) Act is mandatory and all-encompassing; failure to serve any one of the prescribed parties (the occupant, the Deputy County Commissioner and the OCPD) vitiates the service
An error apparent on the face of the record, as a ground for review, must be obvious and self-evident without elaborate argument (as argued by the Respondent citing National Bank of Kenya Ltd v Ndungu Njau)

Court orders

1.The Notice of Motion dated 26th July 2023 is dismissed
2.Each party to bear own costs

Authorities

Legislation

Land Act No. 6 of 2012Section 152E
Land Laws (Amendment) Act No. 28 of 2016Section 152E
Civil Procedure Act, Chapter 21 Laws of KenyaSection 80
Civil Procedure RulesOrder 45 Rule 1(1)

Cases cited (1)

National Bank of Kenya Limited v Ndungu Njau
Civil Appeal No 21 of 1996

Jurisdiction invoked: Section 80 of the Civil Procedure Act (Cap 21) and Order 45 Rule 1(1) of the Civil Procedure Rules - review jurisdiction

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Conpak Industries Limited v Muturi (Environment and Land Miscellaneous Application E041 of 2021) [2024] KEELC 3510 (KLR)", Case Analysis (2024). Notice of Motion dated 26th July 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3510/eng@2024-04-30

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