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ELCDismissedNot stated in the judgment text provided· [2025] KEELC 26 (KLR)

Kirikoni Investments Limited & another v Ngene (Environment and Land Appeal E021 of 2024) [2025] KEELC 26 (KLR)

Environment and Land Court
16 January 2025
11,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~47 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court confirmed the Respondent owns the disputed Kariobangi plot, dismissed the appeal, and upheld Kshs. 500,000 in trespass damages.

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 Nairobi (Oguttu Mboya, J) against the judgment and decree of the Chief Magistrate's court delivered on 16 February 2024, in a dispute over Plot No. 280 Kariobangi South River, also known as LR No. 12062/860 Kariobangi South/Nairobi. The trial court had found the Respondent to be the lawful owner of the suit property and awarded her general damages of Kshs. 500,000/= for trespass. The Appellants, who relied on a letter of allotment dated 18 June 1996 and a lease dated 27 June 2012 executed by the former City Council of Nairobi, challenged the findings on capacity of a minor to receive an allotment, the validity of the Respondent's allotment letter, and the finding of fraud. The Respondent in turn objected to the competence of the appeal under Order 9 Rule 9 of the Civil Procedure Rules because the record of appeal was filed by a firm different from that which filed the memorandum of appeal. The court held the appeal competent, finding that an appeal is a separate and distinct cause, that no judgment had been entered in the appeal, and that the Respondent had waived the objection by participating in directions and confirming the record complete. On the merits, the court re-evaluated the evidence and affirmed the trial magistrate: the Respondent's allotment letter was corroborated by PW 2 of the City County Government of Nairobi, while the Appellants' documents were not traceable to the allocating authority and the lease was a nullity, having been executed during the moratorium under section 35(1) of the Transition to Devolved Government Act 2012, unregistered and unstamped. Fraud was held proved, and the damages award was left undisturbed. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Competence of the appeal under Order 9 Rule 9 of the Civil Procedure Rules, 2010

Holding

The appeal was competent; Order 9 Rule 9 did not apply because the appeal is a separate and distinct cause from the suit, no judgment had been entered in the appeal, the notice of change was lawfully filed, and the Respondent had waived the objection by participating in directions.

Reasoning

The court reasoned that the memorandum of appeal was filed by the firm that acted in the trial court, a recognized agent under Order 9 Rule 1, and such an advocate is deemed retained for all purposes including appeal. Since the appeal is a distinct cause, no leave was required for the notice of change. Further, the Respondent confirmed the record was complete at directions, forfeiting the objection under Order 42 Rule 13(2), and the doctrines of estoppel, waiver and acquiescence applied.

p. 13
02

Ownership of the suit property

Holding

The Respondent is the lawful owner of Plot No. 280 Kariobangi South River (LR No. 12062/860 Kariobangi South/Nairobi); the trial magistrate's finding was unassailable.

Reasoning

The Respondent's claim was anchored on a letter of allotment issued to PW 3, verified through PW 2, the Chief Officer Planning of the City County Government of Nairobi, who confirmed the Respondent's documents were traceable to council records. The Appellants' letter of allotment and lease were not traceable to the allocating authority, and the lease was executed during the devolution moratorium, unregistered and unstamped, hence a nullity and inadmissible.

p. 17
03

Fraud findings against the Appellants

Holding

The trial magistrate's finding of fraud against the Appellants was well grounded; the uncontroverted evidence of PW 2 sufficed to prove fraud.

Reasoning

Documents purportedly issued by the City Council of Nairobi but disowned by that authority's witness, ipso facto denote fraud. The Respondent pleaded and proved fraud to the requisite standard, relying on the principle that fraud must be specifically pleaded and distinctly proved, which the court found satisfied by the uncontroverted evidence that the Appellants' documents could not be traced to the allocating authority.

p. 17
04

Award of general damages of Kshs. 500,000/= for trespass

Holding

The award was lawful and legitimate; the court found no basis to interfere with it.

Reasoning

General damages for trespass are due to the owner of trespassed land and are at large, dependent on the court's discretion considering the nature of the injury, size and location of the property and duration of deprivation. The appellate court, applying settled principles, found the trial magistrate exercised her discretion properly and that the award was neither inordinately high nor low.

p. 20

Legal principles established

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  • An advocate retained in the primary suit is deemed the advocate for the party for all purposes including an appeal, and a fresh appeal is a separate and distinct cause so that Order 9 Rule 9 leave/consent requirements do not apply to a notice of change of advocates in the appeal.
  • A lease executed in contravention of the moratorium under section 35(1) of the Transition to Devolved Government Act 2012 is a nullity incapable of conferring title.
  • In a contest between competing titles, the court must investigate the root of each title, and the evidence of the allocating authority is critical.
  • Mere admission of a document in evidence does not amount to proof of the document.
  • A party who participates in directions and confirms the record of appeal is complete waives any objection to the competence of the appeal (estoppel, waiver and acquiescence).

Court orders

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  1. 1.The appeal be and is hereby dismissed.
  2. 2.Costs of the appeal be and are hereby awarded to the Respondent.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Registered Land Act (repealed), Chapter 300Section 113
  • Land Act No. 6 of 2012Section 27
  • Land Registration Act 2012Sections 27 and 47
  • Transition to Devolved Government Act 2012Section 35(1)
  • Stamp Duty Act, Cap 480Sections 19 and 20
  • Civil Procedure Rules, 2010Order 9 Rules 1, 9 and 13; Order 42 Rule 13(2)

Cases cited (36)

  • Reuben Opile Wilson vs Linet Adhiambo Amolo
    (2022) eKLR
  • Samuel Mbugua Gachuhi vs City Council of Nairobi and 2 others
    (2008) eKLR
  • Ndolo vs Ndolo
    (2008) 1 KLR 742
  • Selle & Another vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Abok James Odera T/A A.J Odera & Associates versus John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Mwana Sokoni versus Kenya Business Limited
    (1985) KLR 931
  • Sottos Shipping versus Sauviet Sohold
    The Times, March 16, 1983
  • Peters versus Sunday Post Limited
    (1958) EA 424
  • Waterfront Holdings Limited v Kandie & 2 others
    (Civil Appeal 88 of 2019) [2023] KECA 1223 (KLR) (6 October 2023)
  • Bahati Temo & Others v. Swafiya Abdalla & Another
    Mombasa Court of Appeal Civil Application No. E005 of 2019
  • Shah v. Kenbox Industries Ltd
    [2005] 1 KLR 822
  • Mary Nchekei Paul v Francis Mundia Ruga
    [2019] eKLR
  • Rafiki Enterprises Ltd. v Kingsway Tyres & Automart Limited
    Civil Application No Nai 375 of 1996
  • 748 Air Services Limited v Theuri Munyi
    [2017] eKLR
  • McIlkenny vs Chief Constable of West Midlands
    [1980] All ER 227
  • Banning vs Wright
    (1972) 2 All ER 987
  • Sita Steel Rolling Mills Ltd vs Jubilee Insurance Company Ltd
    [2007] eKLR
  • Serah Njeri Mwobi case
  • Seascapes Limited vs Development Finance Company of Kenya Limited
    [2009] eKLR
  • Philemon L. Wambia v Gaitano Lusitsa Mukofu, Attorney General & Settlement Fund Trustees
    (Civil Appeal 115 of 2017) [2019] KECA 157 (KLR) (28 November 2019)
  • Kenneth Nyaga Mwige v Austine Kiguta
    Civil Appeal No. 140 of 2008 [2015] eKLR
  • Hubert L. Martin, Cyril Odemdo & Facet Khaemba versus Margaret J. Kamar, Damaris Lenayara, Eileen Kendagor, Mary Kaparo, Maendeleo Ya Wanawake & Commissioner of Lands
    (Environment & Land Case 98 of 2012) [2016] KEELC 1092 (KLR) (18 February 2016)
  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] eKLR
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Kinyanjui Kamau vs George Kamau
    [2015] eKLR
  • Kenya Power & Lighting Company Ltd v Ringera & 2 others
    (Civil Appeal E247 & E248 of 2020 (Consolidated)) [2022] KECA 104 (KLR) (4 February 2022)
  • Duncan Nderitu Ndegwa vs. Kenya Pipeline Company Limited & Another
    [2013] eKLR
  • Philip Ayaya Aluchio vs. Crispinus Ngayo
    [2014] eKLR
  • Ephantus Mwangi & Another vs. Duncan Mwangi
    [1981-1988] 1 KAR 278
  • Kiambu Dairy Farmers Co-operative Society Limited vs. Rhoda Njeri & 30 Others
    [2018] eKLR
  • Kemfro Africa Limited vs. Lubia & Another [No. 2]
    [1987] KLR 30
  • Peter M. Kariuki vs. Attorney General
    [2014] eKLR
  • Johnson Evans Gicheru vs. Andrew Martin & Another
    [2005] eKLR
  • Sumaria & Another vs. Allied Industries Limited
    [2007] 2 KLR 1
  • Butt vs. Khan
    [1981] KLR 349
  • Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited vs. Janevans Limited
    [2015] eKLR
On appeal from
Chief Magistrate's Court
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrates' court (Environment and Land Court); appeal disposed of under Order 42 of the Civil Procedure Rules, 2010

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, "Kirikoni Investments Limited & another v Ngene (Environment and Land Appeal E021 of 2024) [2025] KEELC 26 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/26/eng@2025-01-16

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