Kiniu v Ndungu and Murigi both t/a Annrose Nursery and Primary School & another; Ndung'u (Objector) (Environment & Land Case 179 of 2009) [2024] KEELC 7306 (KLR)
The bottom line
#A Nairobi land court refused to reopen a 2022 judgment, found two women in contempt for ignoring it, and ordered police to help enforce eviction.
What this practically means
#Executive summary
#Key legal issues
#Setting aside judgment for want of hearing (objector not a party)
Refused. The objector's title was acquired during the pendency of the suit in breach of lis pendens, she was aware of the litigation (plaintiff lodged a caution 5 days after her title issued), and a review by the 2nd defendant had already been dismissed.
Litigation commenced in 2009; the objector obtained leases in 2019 while the suit was pending, violating lis pendens. The 1st defendant filed a notice of appeal and the 2nd defendant's review application was dismissed on 21.11.2023. The plaintiff now holds titles issued in February 2024 pursuant to a 16-year court process, and setting aside the judgment would only entrench the defendants' and objector's schemes.
Contempt of court by the 1st defendant and the objector
Found proved against Ann Wairimu and Susan Ndungu; notice to show cause issued.
The court held that court orders bind all persons until discharged, even if believed irregular or void. Post-judgment defences are untenable; the contemnors remained in occupation, connected electricity, leased structures and farmed the suit parcels contrary to the decree. A notice to show cause why they should not be punished was issued.
Police security for demolition of structures
Allowed, affirming an earlier ruling of 2.2.2023 permitting OCS Ruai to facilitate enforcement of the judgment.
The court had already pronounced the plaintiff proprietor of the parcels and had on 2.2.2023 allowed the OCS Ruai to facilitate enforcement. The orders sought merely affirm those earlier orders. The court also cautioned against a plethora of applications as an abuse of process, threatening to strike out future abusive applications.
Abuse of process by serial applications
The court warned it will strike out applications amounting to abuse of process.
The objector filed four applications, some a day apart, to convolute the dispute post-judgment. Citing Lawrence Kinyua Mwai v Nyariginu Farmers Co Ltd, the court declared that it will no longer hesitate to strike out applications that abuse court process.
Legal principles established
#- Court orders must be obeyed unless and until discharged, even where the person affected believes the order to be irregular or void
- The doctrine of lis pendens prohibits a party from giving others pending litigation rights to property in dispute so as to prejudice the other party
- An objector bears the burden of proving entitlement or a legal or equitable interest in the attached property
- In deciding whether to set aside a judgment, the court considers all facts and circumstances prior and subsequent and the respective merits of the parties
Court orders
#- 1.The 1st application dated 4.3.2024 by the objector is dismissed with costs to the plaintiff
- 2.The 2nd application dated 5.3.2024 by the objector is marked as SPENT, having been overtaken by events
- 3.The 3rd application dated 18.3.2024 by the plaintiff is allowed; ANN WAIRIMU and SUSAN NDUNGU are found to be in contempt of court orders and a notice to show cause is issued against them to appear before the court; the contemnors to pay the costs of the application
- 4.The 4th application dated 6.5.2024 by the 1st defendant (leave for Malela Basil & Co. Advocates to come on record post judgment) is allowed with no orders as to costs
- 5.The 5th application dated 10.7.2024 by the objector is marked as SPENT
- 6.The 6th application dated 18.7.2024 by the plaintiff is allowed; the OCS Ruai Police Station is directed to provide security during removal and demolition of structures on LR No. Nairobi Block 105/1927 and 105/1928; plaintiff awarded costs against Ann Wairimu and Susan Ndungu
- 7.The 7th application dated 19.7.2024 by the intended defendant/interested party/objector (Susan Ndungu) is dismissed with costs to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit land and post-judgment applications
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiniu v Ndungu and Murigi both t/a Annrose Nursery and Primary School & another; Ndung'u (Objector) (Environment & Land Case 179 of 2009) [2024] KEELC 7306 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7306/eng@2024-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.