Nairobi City Council (Now being Nairobi City County Government v Commissioner of Lands & 2 others (Environment & Land Case 5 of 2021)  KEELC 15490 (KLR) (24 November 2022) (Ruling)
Neutral citation:  KEELC 15490 (KLR)
Republic of Kenya
Environment & Land Case 5 of 2021
LC Komingoi, J
November 24, 2022
Nairobi City Council (Now being Nairobi City County Government)
Commissioner Of Lands
Gamex Shelter Hunters Limited
Muthithi Investments Limited
1.This is the Notice of Motion dated June 25, 2020 brought under section 1A, 3, 3A and 63 (e) of the Civil Procedure Act, and order 51 rule 1 of the Civil Procedure Rules, section 13 and 19 of the Environment and Land Act and the inherent power of the court.
2.It seeks orders:-
3.The grounds are on the face of the application and are set out in paragraphs 1 to 21.
4.The application is supported by the affidavit of Joseph Omosa Advocate of the plaintiff sworn on June 25, 2020. It is also supported by the affidavit of J G Mwangi, Chief Officer Lands Department at Nairobi City County sworn on June 25, 2020.
5.The application is opposed. There is a replying affidavit sworn by Peter Thuranira Ndungu, a director of the 3rd defendant/respondent.
6.On April 22, 2021, the court with the consent of the parties directed that the notice of motion be canvassed by way of written submissions.
7.I have considered the notice of motion, the affidavits in support and the annexures. I have also considered the affidavits in response, the written submissions and the oral highlights. The issue for determination is whether this application is merited.
8.The 3rd defendant/respondent, after it was concluded that the 2nd defendant/respondent did not have a valid title, approached the plaintiff/applicant seeking to be allocated LR no29917 (the suit property)
9.Parties negotiated and the 3rd defendant/respondent paid the plaintiff for the suit property. This led to the consent order issued on February 8, 2000 vesting the suit property on the 3rd defendant/respondent. The 3rd defendant/respondent duly paid for the property and complied with all requirements.
10.Pursuant to the consent order dated February 8, 2000, the plaintiff/applicant herein issued a lease dated February 5, 2001 over the suit property to the 3rd defendant/respondent. It is the 3rd defendant/respondent’s submission that the lease issued to the 3rd defendant/respondent has nothing to do with the fraudulent certificate of title held by the 2nd defendant/respondent.
11.It is not in dispute that the suit property has been subject to various suits before the Environment and Land Court and the plaintiff/applicant has participated in some of them. They are:-
12.In December 2019, eviction orders were issued in ELC 437 of 2014, Muthithi Investments vs Andrew Kyendo & Others against the squatters who occupied the suit property. The 3rd defendant/respondent partially executed the eviction orders after which they entered into a sale agreement with the occupants. The suit property has been sold to the current occupants.
13.In the case of Brook Bond Liebig Ltd v Mallya  EA 266 the Court of Appeal held that:-
14.Similarly, in Hirani v Kassam  EA 131 the Court of Appeal of East Africa held that:-
15.I find that the plaintiff/applicant has not demonstrated any fraud as against the 3rd defendant/respondent. In the case of Kinyanjui Kamau v George Kamau  eKLR. It was held that:-
16.I agree with the counsel for the 3rd defendant/respondent’s submission that the issue of consent judgment was considered in ELC 437 of 2014: Muthithi Investments vs Andrew Kyendo & Others where it was held that the lease to the 3rd defendant was duly issued by the plaintiff. I find that the application does not meet the threshold for setting aside the consent judgment dated February 8, 2000.
17.The consent order has been in force for twenty-two (22) years. The delay in seeking the reconstruction of the alleged missing file has not been explained. In the case of Joshua Ngatu v Jane Mpinda & 3 Others  e KLR the court stated as follows:-
18.Similarly in Pop-in (Kenya) Ltd & 3 Others v Habib Bank A.G Zurich  e KLR the Court of Appeal held:-
19.I find that the delay in bringing this application has not been explained.
20.I find no merit in this application and the same is dismissed with costs to the 3rd defendant/respondent.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF NOVEMBER 2022.……………………….L KOMINGOIJUDGEIn the presence of:-No appearance for the plaintiff/applicantNo appearance for the 1st – 3rd defendants/respondentsMutisya – court assistant