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ELCDismissedNot stated in the judgment· [2024] KEELC 6312 (KLR)

Seria Limited v Munene (Environment and Land Appeal E006 of 2023) [2024] KEELC 6312 (KLR)

Environment and Land Court
26 September 2024
2,403 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court has confirmed Lydia Munene as the rightful owner of a Ngong' plot, dismissing a company's appeal for lack of evidence of fraud.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kajiado against the judgment of Hon. P. Achieng' delivered on 16th March 2023 in Ngong' SPM ELC No. 82 of 2018, which dismissed the Appellant's suit and found the Respondent the rightful owner of plot Ngong' Township Block 2/818. The Appellant (a company whose Director is John Simel Ole Sokoto) had sued for declaration of ownership of plots 815 and 818, injunction and damages for trespass. The Respondent, Lydia Munene, defended on the basis that the Appellant had irrevocably offered plot 818 to Alexander Kipaiyu Sialala, who nominated Catherine Naisola; a transfer of lease to Catherine was executed in November 2008, council consent was granted in 2009, and Catherine sold the plot to the Respondent by agreement dated 11th February 2013. The Appellant argued before this Court that the Respondent could not enforce a contract she was not party to and that the contract with Sialala was illegal because he was not a registered estate agent under Section 18(1)(a) of the Estate Agents Act. The Respondent did not file submissions. L. Komingoi J framed three issues and, applying the first-appeal principles in Selle v Associated Motor Boats Co. Ltd, reviewed the evidence. The Court found no credible evidence of forgery, fraud, illegality, trespass or unlawful possession by the Respondent. It held that the illegality argument was moot because Sialala and Catherine were not parties, invoking the principle that no person should be condemned unheard. The appeal was dismissed, the lower court's findings upheld, and each party ordered to bear its own costs.

Key legal issues

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01

Whether the trial magistrate erred in finding the Respondent the rightful owner of Ngong' Township Block 2/818

Holding

The trial court's finding was correct; the Appellant failed to prove fraud, forgery, illegality, trespass or unlawful possession by the Respondent, and the Respondent is the rightful owner

Reasoning

The court traced the history of the suit property: the 2008 agreement and irrevocable offer to Sialala, the request to transfer plot 818 to Catherine Naisola, the executed transfer of lease, the Council's approval of the transfer in 2009, and Catherine's sale to the Respondent in 2013. The Appellant's own Director acknowledged instructing advocates to process the transfer to Catherine. The absence of credible evidence of fraud or illegality substantiated the lower court's findings.

p. 5
02

Whether the Appellant could raise the illegality of the contract with Sialala under the Estate Agents Act when Sialala and Catherine were not parties to the suit

Holding

The issue of Sialala's registration as an estate agent was moot because Sialala and Catherine Naisola were not parties to the litigation and could not be condemned unheard

Reasoning

Despite the substantial involvement of Sialala and Catherine in the events leading to the litigation, the Appellant chose not to join them as parties. The court held that the principle that no person should be condemned unheard required that issues dependent on findings against non-parties could not be entertained. The alleged illegality under Section 18(1)(a) of the Estate Agents Act was therefore rendered moot.

p. 5

Legal principles established

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  • No person should be condemned unheard; where a third party central to the dispute is not joined as a party, issues touching that party's conduct cannot be determined in the litigation
  • On a first appeal, the court reconsiders and re-evaluates the evidence and draws its own conclusions, but will only depart from the trial court's findings if they were not based on the evidence on record or the trial court acted on wrong principles of law

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The findings of the Lower Court are upheld
  3. 3.Each party to bear own costs
On appeal from
Ngong' Senior Principal Magistrate's Court (SPM ELC)
Ngong' SPM ELC No. 82 of 2018
Jurisdiction invoked
First appeal to the Environment and Land Court from the magistrate's court (Ngong' SPM ELC No. 82 of 2018)

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, "Seria Limited v Munene (Environment and Land Appeal E006 of 2023) [2024] KEELC 6312 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6312/eng@2024-09-26

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