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ELCPartially AllowedELC Appeal No. 81 of 2023 (lead file, consolidated with ELC Appeal No. E065 of 2024)· [2025] KEELC 6153 (KLR)

C.F.F Kimbo Church & 4 others v Ndegwa & another (Environment and Land Appeal E081 of 2023) [2025] KEELC 6153 (KLR)

Environment and Land Court
18 September 2025
3,598 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside an ex parte land judgment so four overlooked landowners can be heard, but refused to protect a church that bought the land after judgment.

What this practically means

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Executive summary

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This appeal arose from a ruling of Hon. J.A Agonda, Principal Magistrate, in Ruiru CMELC Case No. 134 of 2020, declining to set aside an ex parte judgment of 22nd January 2022 which had allowed the 2nd Respondent's counterclaim and ordered cancellation of titles, even though she granted the Appellants leave to be joined. The appeals, consolidated with ELC Appeal No. E065 of 2024, challenged that ruling. J. M Onyango J framed a single issue: whether the trial magistrate's ruling ought to be set aside. Applying the principles on interference with discretionary decisions, the court held that although the trial magistrate correctly found the Appellants had not been heard and that the right to a fair hearing was engaged, she fell into error in refusing to set aside the judgment on functus officio grounds; that doctrine does not bar an application under Order 12 Rule 7 of the Civil Procedure Rules. The court also distinguished Christabel Achieng Odera, noting the Appellants acquired their parcels before the suit was filed. However, the 1st Appellant, CFF Kimbo Church, which purchased the suit property from the 1st Respondent after judgment and charged it to a sacco, was refused joinder: the sale contravened lis pendens and was null and void ab initio, with any remedy lying in a separate suit. The appeal succeeded partially: the ex parte judgment and all consequential orders were set aside, the four purchaser-appellants were joined as interested parties to file pleadings within 21 days, the suit was remitted for fresh hearing before a different magistrate, the 1st Appellant's appeal was dismissed, and each party was ordered to bear their own costs.

Key legal issues

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01

Whether the trial magistrate erred in declining to set aside the ex parte judgment after joining the Appellants to the suit

Holding

Yes. Having found the Appellants were not heard despite their rights being affected, the court's discretion to set aside the judgment ought to have been exercised; functus officio was no bar under Order 12 Rule 7.

Reasoning

The trial magistrate acknowledged the constitutional right to be heard and that the 1st Respondent, who sold the land to the Appellants, failed to join them. Yet she declined to set aside the judgment citing functus officio. The court held that doctrine does not bar an application under Order 12 Rule 7, and the discretion should have been exercised to allow the newly joined parties a hearing.

p. 6
02

Whether the 1st Appellant (CFF Kimbo Church) should have been granted leave to join the suit

Holding

No. Its acquisition of the suit property after judgment contravened lis pendens and was null and void; its remedy lies in a separate suit against the 1st Respondent.

Reasoning

The judgment of 22nd January 2022 had declared the 1st Respondent not the lawful owner and ordered cancellation of his title. He nonetheless sold the property to the 1st Appellant, which charged it to a sacco. The court held such a sale null and void ab initio and intended to subvert the course of justice; joining the purchaser would sanction an illegality.

p. 7
03

Whether the instant case was governed by the decision in Christabel Achieng Odera

Holding

No; the case is distinguishable because the Appellants acquired their parcels before the suit was filed, unlike the pendente-lite purchasers in Christabel Achieng.

Reasoning

The 2nd Respondent relied on a decision where the court declined to set aside judgment and join interested parties post-judgment. The court distinguished it: the Appellants here were prior registered owners whose titles predated the suit, whereas the interested parties there derived titles during the pendency of the suit.

p. 6

Legal principles established

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  • The doctrine of functus officio does not bar a court from entertaining an application to set aside a judgment under Order 12 Rule 7 of the Civil Procedure Rules.
  • An appellate court will not interfere with a discretionary order unless the trial court misdirected itself, acted on wrong matters, or failed to consider relevant matters and arrived at a wrong conclusion.
  • A sale of suit property made after judgment, contrary to the doctrine of lis pendens, is unlawful and null and void ab initio.
  • The doctrine of lis pendens remains applicable in Kenya under common law following the repeal of the ITPA by the Land Registration Act, by virtue of section 107(1) of the LRA.

Court orders

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  1. 1.The judgment dated 22nd January 2022 in Ruiru CM ELC Case No. 134 of 2020 is set aside together with all consequential orders thereto
  2. 2.Boniface Mwaura Kamau, Janerose Nguta Mati, Jofirey Cheruiyot and Beatrice Wangari Muriithi are added to the suit as 1st to 4th interested parties respectively
  3. 3.The 1st to 4th Interested parties shall file and serve their defences, List of Documents and Witness Statements within 21 days
  4. 4.The suit shall be set down for hearing afresh before a Magistrate other than Honourable J. A Agonda P.M.
  5. 5.The 1st Appellant's appeal is dismissed
  6. 6.Each party shall bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 48 and 50
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 1 Rule 10; Order 12 Rule 7
  • Transfer of Property Act (TPA)Section 52
  • Registration of Titles Act (RTA)Section 23
  • Land Registration ActSection 107(1)
  • Indian Transfer of Property Act (ITPA)repealed by the Land Registration Act

Cases cited (13)

  • Mbogo & Another v Shah
    [1968] EA
  • Shah v. Mbogo & Another
    [1967] EA 116
  • Patel v. East Africa Cargo Services Ltd
    [1974] EA 75
  • M.K v M.W & Another
    [2015] eKLR
  • Gerita Nasipondi Bukunya & 2 Others v Attorney General
    [2019] eKLR
  • Mbaki and others v Macharia & Another
    [2005] 2 EA 206
  • James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another
    [2016] eKLR
  • Ali Bin Khamis v Salim Bin Khamis Kirobe and Others
    [1956] 1 EA 195
  • Craig v Kanseen
    [1943] 1 All ER 108
  • Raila Odinga & Others v. IEBC & Others
    [2013] eKLR
  • Christabel Achieng Odera & 6 Others v Christopher Juma Akinyi & 5 Others David Odera & 18 Others Interested Parties
    [2023] KEELC 112 (Judgment, 19 January 2023)
  • Mawji v US International University & Another
    1976 KLR 185
  • Marete v Ndegwa & 2 Others
    [2024] KECA 545 [KLR]
On appeal from
Principal Magistrate's Court, Ruiru
Ruiru CMELC Case No. 134 of 2020
Jurisdiction invoked
First appellate jurisdiction over the ruling of the Principal Magistrate's Court (Environment and Land Court appeal)

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, "C.F.F Kimbo Church & 4 others v Ndegwa & another (Environment and Land Appeal E081 of 2023) [2025] KEELC 6153 (KLR)", Case Analysis (2025). ELC Appeal No. 81 of 2023 (lead file, consolidated with ELC Appeal No. E065 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6153/eng@2025-09-18

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