Kirikoni Investments Limited & another v Ngene (Environment and Land Appeal E021 of 2024) [2025] KEELC 26 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Competence of the appeal under Order 9 Rule 9 of the Civil Procedure Rules, 2010
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.
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.
Ownership of the suit property
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.
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.
Fraud findings against the Appellants
The trial magistrate's finding of fraud against the Appellants was well grounded; the uncontroverted evidence of PW 2 sufficed to prove fraud.
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.
Award of general damages of Kshs. 500,000/= for trespass
The award was lawful and legitimate; the court found no basis to interfere with it.
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.
Legal principles established
#- 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
#- 1.The appeal be and is hereby dismissed.
- 2.Costs of the appeal be and are hereby awarded to the Respondent.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.