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ELCAllowedMiscellaneous Suit (application dated 23 February 2022)· [2024] KEELC 3761 (KLR)

Iningu v Mwangi (Environment & Land Miscellaneous Case 9 of 2023) [2024] KEELC 3761 (KLR)

Environment and Land Court
8 May 2024
1,633 words in judgment
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The bottom line

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A Kenyan landowner who was never properly served won back her land, and every transaction registered after the flawed 2010 court order was cancelled.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii (Munyao Sila J, delivered 8 May 2024) determined an application dated 23 February 2022 by Anne Muthoni Mwangi, respondent in a Miscellaneous Suit, seeking to set aside the judgment, decree and consequential orders of 5 October 2010 by which Makhandia J had allowed, ex parte, a Notice of Motion dated 16 September 2010 by Duncan Majiwa. That motion had sought cancellation of her registration as proprietor of land parcel Kwale/Diani Complex/919, sold to Majiwa at auction on 29 December 2009 in execution of a decree in Migori CMCC No. 560 of 2002 (Duncan Majiwa v United Insurance Company Limited), on the basis that her transfer occurred after a prohibitory order was registered. The applicant contended she was never served: the affidavit of service of Isaac Nyangena Kemari claimed she was served at her Molo shop on 23 September 2010, but passport evidence showed she left Kenya on 10 July 2010 and was in Germany. The court found service was not seriously contested, that the affidavit of service was a fraud, and held that setting aside ex parte proceedings for want of service is available ex debito justitiae, as of right. The court declined to enter into the fraud allegations regarding her acquisition. The court also rejected a limitation objection, holding the twelve-year period under section 4(4) of the Limitation of Actions Act had not lapsed, and time did not run until discovery of the fraud in 2021 under section 26. The ex parte proceedings and all consequential orders, including post-5 October 2010 register entries, were set aside; the Land Registrar, Kwale, was ordered to revert the register, with costs to the applicant. Further directions on the substantive motion were reserved.

Key legal issues

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01

Want of service and setting aside ex parte proceedings

Holding

The applicant was in Germany when the process server alleged he served her in Molo Town; the affidavit of service was a fraud and the ex parte proceedings and all consequential orders fall to be set aside

Reasoning

The court found the claim that the applicant was out of the country was not seriously contested; passport evidence showed she exited Kenya on 10 July 2010, well before the alleged service on 23 September 2010. Since service was the sole foundation of the ex parte order of 5 October 2010, setting aside follows as of right, and all consequential dispositions on the register must be undone. Allegations of fraud in the original acquisition are left for the substantive hearing.

p. 3
02

Limitation of actions

Holding

The application filed on 23 March 2022 was within the twelve-year period under section 4(4) of the Limitation of Actions Act measured from 5 October 2010, and in any event time did not run until discovery of the fraud in 2021 under section 26

Reasoning

Counsel for the respondent argued the application was time-barred since six years had lapsed from the orders of 5 October 2010. The court held the relevant period is twelve years for an action upon a judgment, which had not lapsed. Section 26 further postpones the running of time until discovery of the fraud, which occurred in May 2021 when the applicant visited the Land Registry. The application was therefore well within time.

p. 3

Legal principles established

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  • Where a party was never served as alleged, the ex parte proceedings may be set aside ex debito justitiae, as a matter of right
  • In an application to set aside for want of service, the court confines itself to the question of service and does not adjudicate the merits, including allegations of fraud
  • Under section 26 of the Limitation of Actions Act, time does not run against a plaintiff in an action for relief from fraud until the fraud is discovered

Court orders

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  1. 1.Mungai Kamau & Company Advocates allowed to come on record for the applicant
  2. 2.Ex parte proceedings and order of 5 October 2010 set aside
  3. 3.All consequential orders and steps pursuant to the order of 5 October 2010, including all dispositions registered after 5 October 2010, set aside
  4. 4.Order issued to the Land Registrar, Kwale, to cancel all entries in the register of land parcel Kwale/Diani Complex/919 made after 5 October 2010 and revert the register to its state as at 5 October 2010
  5. 5.Costs of the application awarded to the applicant
  6. 6.Further directions reserved on the inter partes hearing of the Miscellaneous Notice of Motion dated 16 September 2010

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22, Laws of KenyaSection 4(4)
  • Limitation of Actions Act, Cap 22, Laws of KenyaSection 26
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over its own Miscellaneous Suit proceedings

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, "Iningu v Mwangi (Environment & Land Miscellaneous Case 9 of 2023) [2024] KEELC 3761 (KLR)", Case Analysis (2024). Miscellaneous Suit (application dated 23 February 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3761/eng@2024-05-08

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