https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3036

Electrical Marketing (Wholesalers) Limited v Nairobi City County & 3 others (Environment and Land Appeal 22 of 2017) [2026] KEELC 3036 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3036 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal 22 of 2017 EK Wabwoto, J May 21, 2026 Between Electrical Marketing (Wholesalers) Limited Decree holder and The Nairobi City County 1st Respondent Gopal Harish 2nd Respondent Vekaria Lalji Gopal 3rd Respondent and Cinatine Enterprise Limited Interested Party Ruling 1.This Ruling is in respect to the Notice of Motion dated 21st April 2026 filed by Cinatine Enterprise Limited (the "Applicant"), the Intended Interested Party, seeking: (a) joinder to these proceedings as an Interested Party; (b) an order that the Judgment of this Court dated 15th July 2019 be set aside; and (c) a stay of execution of all orders in this matter, including the eviction application dated 9th March 2026. The application is brought under Order 1 Rule 10(2) of the Civil Procedure Rules, 2010. 2.The underlying matter, E.L.C. Appeal No. 22 of 2017, originated in Civil Suit No. 3 of 2011 before the Magistrate's Court, Nairobi. Judgment was delivered in that suit by Hon. M. W. Njagi on 29th May 2017 and orders were made for the sale of Land Reference No. 209/8323 IR 139077 (hereinafter the "Suit Property") by public auction. This Court differently constituted, Lady Justice K. Bor delivered judgment on appeal on 15th July 2019, allowed the appeal, set aside the orders made for the sale by public auction and all consequential orders, and awarded the Appellant/Decree Holder costs against the 1st Respondent. The Applicant's Case (Cinatine Enterprise Limited) 3.The Applicant's case, as set out in the Supporting Affidavit of Hellen Adhiambo Oburu and the Further Affidavit of the same deponent sworn on 4th May 2026, is as follows; the Applicant avers that it is the duly registered proprietor of the Suit Property, Land Reference No. 209/8323 IR 139xxx, comprising 0.1035 of a hectare (0.2557 of an acre), having purchased it from Gilbi Construction Company. The title is registered in the Applicant's name and the transfer, recorded as entry number 23 on the Register, was effected on 9th March 2018, which the Applicant contends predates the institution of the present proceedings. 4.The Applicant further avers that it was at no time a party to these proceedings, was never served with or otherwise notified of the pendency of this suit, and had no knowledge of the judgment of 15th July 2019. It avers that it only became aware of the judgment upon being informed by its current advocates, who themselves learned of the matter through the Decree Holder's eviction application dated 9th March 2026. The Applicant apprehends that unless it is joined to these proceedings, it faces eviction from property it lawfully purchased without ever having been heard. 5.On the question of res judicata, the Applicant asserts that although a prior application was filed on 24th July 2019, the question of its ownership of the Suit Property was never directly and substantially determined. It contends that the prior application did not put into controversy the specific facts now placed before the Court by the Further Affidavit and that the issue of ownership is a novel one yet to be adjudicated on its merits. The Applicant relies upon the Further Affidavit's Exhibit HO-1 being an official Register search dated 30th April 2026 as fresh evidence establishing that entry No. 23 was registered on 9th March 2018. 6.The Applicant further contends that a violation of the rules of natural justice cannot be cured by holding that the decision would otherwise have been correct, relying upon Onyango Oloo v Attorney General [1986-1989] EA 456. It invokes the constitutional guarantee of fair hearing under Article 50(1) of the Constitution and submits that it cannot be divested of its registered title without being afforded an opportunity to be heard.The Decree Holder/Appellant's Case (Electrical Marketing (Wholesale) Limited) 7.The Decree Holder's case, as set out in the Replying Affidavit of Sunil K. Patel sworn on 25th April 2026, proceeds on two main planks. 8.First, the Decree Holder contends that the present application is res judicata and an abuse of the court's process. It points to the fact that the Applicant previously filed an application dated 24th July 2019 raising substantially the same grievance that it was the registered owner of the Suit Property and had not been heard before the judgment was delivered and seeking the same substantive reliefs of joinder and setting aside of the judgment. That application was opposed by the Decree Holder, heard by way of written submissions, and dismissed with costs by this Court vide a Ruling dated 7th October 2020. The Applicant's subsequent challenge to that Ruling in the Court of Appeal was itself dismissed vide a Ruling dated 25th February 2022. The Decree Holder submits that the Applicant's averment that it came to know of these proceedings "by sheer chance" is false and in bad faith. 9.Second, the Decree Holder contends that the Applicant is not a necessary party to these proceedings and that its alleged title is infected by the doctrine of lis pendens. It avers that official land searches conducted on 7th July 2015 and 6th June 2016 confirmed the 2nd and 3rd Respondents as the registered proprietors of the Suit Property at those dates. On 6th June 2016, the subordinate court issued orders in the presence of counsel for the 2nd and 3rd Respondents prohibiting any transfer of, or dealings with, the Suit Property pending determination of the proceedings. Those orders were registered against the title at the Lands Registry. The Decree Holder submits that any transfer of the Suit Property to the Applicant was effected in the face of these orders and in contempt of court, and accordingly cannot confer on the Applicant any interest capable of grounding joinder. 10.The Decree Holder further submits that the Applicant has produced no credible evidence of a genuine arm's-length transaction. There is no sale agreement, no evidence of payment of consideration, no valuation report, no transfer form duly signed, and no evidence of payment of stamp duty. In these circumstances, the Applicant cannot meet the threshold for a bona fide purchaser for value as laid down in Katende v Haridar & Company Limited [2008] 2 EA 173. The 2nd and 3rd Respondents, who actively participated in these proceedings as owners, are also estopped from introducing a third-party claim to the title at this stage. The Respondents' Position 11.The 1st Respondent, the Nairobi City County, and the 2nd and 3rd Respondents (Gopal Harish and Vekaria Lalji Gopal) have not filed any affidavit or submissions in respect of the present application. The 2nd and 3rd Respondents are named as holders of the title that was the subject of the judgment and appeal herein. Their inactivity in the face of the present application is noted. The Court observes, however, that throughout these proceedings the 2nd and 3rd Respondents presented themselves as the owners of the Suit Property, filed applications, made submissions, and appealed the judgment against them, without at any point disclosing that they had purportedly transferred the Suit Property to the Applicant. Submissions of the Applicant 12.Counsel for the Applicant, Felgona Omondi & Company Advocates, filed written submissions dated 5th May 2026 in support of the application. The submissions advanced the following contentions. 13.On the threshold for joinder, the Applicant submits that the governing principles were settled by the Supreme Court in Trusted Society of Human Rights Alliance v Matemo & 5 others [2014] KESC 32 (KLR), where an interested party was defined as one who has a stake in the proceedings and will be affected by the court's decision. The Applicant further relies on Francis Muruatetu and another v Republic and 5 others [2016] eKLR, in which the Supreme Court identified three elements to be proved: (a) a personal interest or stake that is clearly identifiable and proximate; (b) prejudice to be suffered in the case of non-joinder; and (c) the case and/or submissions the applicant intends to make, which are not merely a replication of those of other parties. The Applicant submits that it satisfies all three elements as the registered proprietor of the Suit Property. 14.The Applicant also relies on Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 (as approved in Gladys Nduku Nthuki v Lesthengo Kenya Limited [2022] eKLR) for the proposition that a party may be joined not because there is a cause of action against it but because its presence is necessary to enable the court to effectually and completely adjudicate upon all questions in the cause. The Applicant submits that the orders in this matter directly affect its title and that its participation is essential. 15.On res judicata, the Applicant submits that the doctrine is not attracted because the question of its ownership of the Suit Property was never directly and substantially determined in any prior proceedings. It contends that the prior application of 24th July 2019 did not raise, and the Ruling of 7th October 2020 did not determine, the specific issue of whether the transfer to the Applicant predated the institution of suit. The Applicant relies on the elements of res judicata as articulated in IEBC v Kiai & 5 others [2017] KECA 477 (KLR) and submits that the conjunctive requirements of the doctrine are not met. 16.On natural justice, the Applicant invokes the rule of audi alteram partem and relies on Pashito Holdings Limited & Another v Paul Nderitu Ndungu & 2 others [1997] KECA 423 (KLR) and on Onyango Oloo v Attorney General [1986-1989] EA 456 for the proposition that a decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been correct. The Applicant further invokes Article 50(1) of the Constitution of Kenya, 2010, which guarantees the right to a fair hearing. 17.On lis pendens, the Applicant submits that the doctrine does not apply because its registration predates the institution of the present proceedings. It relies on Exhibit HO-1 as establishing that the transfer was registered on 9th March 2018 and invites the Court to find that this is a new and material factual development that was not before the Court at the time of the 2020 Ruling. Submissions of the Decree Holder/Appellant 18.Counsel for the Decree Holder, Mulekyo & Company Advocates, filed written submissions dated 12th May 2026 in opposition to the application. The following contentions were advanced. 19.On res judicata, the Decree Holder submits that the application is barred in its entirety. It points to the five conjunctive elements under Section 7 of the Civil Procedure Act as expounded in IEBC v Kiai (supra) and submits that all five are satisfied: the parties, the title, and the issues in the present application are identical to those in the application dated 24th July 2019; the 2020 Ruling conclusively determined those issues; and this Court was and remains competent to determine such matters. The Decree Holder submits that the Applicant is guilty of material non-disclosure in not placing the prior application, the 2020 Ruling, and the 2022 Court of Appeal Ruling before this Court, and that this non-disclosure constitutes a separate and independent abuse of process. 20.On lis pendens, the Decree Holder submits that the transfer of the Suit Property to the Applicant was effected during the active pendency of these proceedings and in direct violation of court orders registered against the title. It relies on Section 52 of the Indian Transfer of Property Act (as saved by Section 107(1) of the Land Registration Act and Section 3(1) of the Judicature Act, Cap 8), and on the Court of Appeal's decision in Naftali Ruthi Kinyua v Patrick Thuita Gachure & another [2015] KECA 911 (KLR), for the proposition that any person dealing with property while it is the subject of active litigation is bound by the outcome of that litigation. The Decree Holder further relies on the principle in Mawji v US International University [1976] KLR 185 that every person is presumed to be attentive to what passes in the courts of justice. 21.On the bona fide purchaser point, the Decree Holder relies on Katende v Haridar & Company Limited [2008] 2 EA 173, as cited with approval by the Court of Appeal in Lawrence P. Mukiri Mungai v Attorney General & 4 Others [2017] eKLR, and submits that the Applicant has not produced any of the documentary evidence ordinarily required to establish good title: no sale agreement, no valuation, no evidence of payment of consideration, no evidence of stamp duty, and no transfer form. The absence of these documents, combined with the suspicious circumstances of the transaction, is inconsistent with bona fide purchase. 22.The Decree Holder also invokes the principle of cause of action estoppel from Mulla's Code of Civil Procedure (Seventeenth Edition) at page 197, and the principles of estoppel by conduct as described in Steve Uglow's Evidence: Text and Materials (Second Edition, 2006) at pages 741–742, to submit that the 2nd and 3rd Respondents, having throughout the litigation asserted ownership of the Suit Property, are estopped from now introducing a claim by a third party. It further submits that the purported transfer was designed to defeat justice and frustrate the Decree Holder's legitimate claim. Issues for determination 23.The Court identifies the following issues for determination:(a)Whether the application is res judicata and/or an abuse of the court process;(b)Whether the Applicant meets the threshold for joinder as an Interested Party;(c)Whether a stay of execution should be granted. Analysis and determination I. Whether the Application is Res Judicata and an Abuse of the Court Process 24.The Decree Holder submits with force that the present application is a repeat of the Notice of Motion dated 24th July 2019 and is accordingly barred by the doctrine of res judicata as codified in Section 7 of the Civil Procedure Act. The Court of Appeal's decision in Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR) sets out the governing principles. In that case the Court of Appeal held that the doctrine of res judicata "serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court." For the bar to be effectively raised, all of the following conjunctive elements under Section 7 must be satisfied:(a)The suit or issue was directly and substantially in issue in the former suit;(b)That former suit was between the same parties or parties under whom they or any of them claim;(c)Those parties were litigating under the same title;(d)The issue was heard and finally determined in the former suit; and(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. 25.On a careful application of these principles to the facts, the primary issue in both the application of 24th July 2019 and the present application is identical: the Applicant contends that it is the registered proprietor of the Suit Property and was not heard before the judgment of 15th July 2019 was delivered, and it seeks joinder and the setting aside of that judgment. The parties in both applications are the same. The Applicant litigated in both as the claimed registered proprietor of LR No. 209/8323 the same title. This Court, sitting as the Environment and Land Court, had jurisdiction to hear both applications. The 2019 application was heard and determined by the Ruling of 7th October 2020, which was not disturbed on appeal. 26.The Court has reviewed the Ruling of 7th October 2020 as annexed. In that Ruling, this Court framed the issues for determination as: (a) whether the Applicant was a necessary party to these proceedings; and (b) whether the judgment of 15th July 2019 ought to be set aside. These are precisely the issues now again before this Court. All five conjunctive elements of res judicata are therefore satisfied on the facts of this case. 27.The Applicant's submission that the ownership question is a "novel issue" because the prior ruling did not expressly pronounce on the title does not withstand scrutiny. The central question in both applications was whether the Applicant's claimed proprietary interest warranted its joinder. That question was directly and substantially in issue and was determined against the Applicant. As the Court of Appeal observed in IEBC v Kiai (supra), the practical effect of the res judicata doctrine is that it is "a complete estoppel against any suit that runs afoul of it" and there is no way of going around it, not even by consent of the parties. 28.This finding is compounded by the Applicant's material non-disclosure. The Applicant has not disclosed to this Court: the prior application of 24th July 2019; the Ruling of 7th October 2020 dismissing it with costs; or the Court of Appeal Ruling of 25th February 2022 rejecting its appeal against that Ruling. The Applicant's averment that it "became aware of these proceedings by sheer chance" is directly contradicted by these undisclosed prior proceedings. Material non-disclosure, in and of itself, constitutes an abuse of the court's process. II. Whether the Applicant Meets the Threshold for Joinder as an Interested Party 29.Notwithstanding the res judicata finding, the Court proceeds to consider the substantive joinder question, and in particular whether the Further Affidavit's Exhibit HO-1 the Register search showing registration of entry No. 23 on 9th March 2018 constitutes new and material evidence that would take this application outside the scope of the prior Ruling. 30.The governing principles on joinder of an Interested Party are settled at the highest level. In Trusted Society of Human Rights Alliance v Matemo & 5 others [2014] KESC 32 (KLR), the Supreme Court held that an interested party is one who has a stake in the proceedings and will be affected by the court's decision. The Supreme Court further refined the test in Francis Muruatetu and another v Republic and 5 others [2016] eKLR by requiring demonstration of:(a)a personal interest or stake that is clearly identifiable and proximate;(b)prejudice in the case of non-joinder; and(c)submissions that are not merely a replication of those of other parties. 31.However, the question of whether the Applicant holds a legally protectable interest in the Suit Property one that the Court is bound to respect cannot be answered without reference to the doctrine of lis pendens. The Court of Appeal comprehensively expounded this doctrine in Naftali Ruthi Kinyua v Patrick Thuita Gachure & another [2015] KECA 911 (KLR). Tracing the doctrine to the foundational passage in Bellamy v Sabine [1857] 1 De J 566, the Court of Appeal held that lis pendens is a doctrine common to law and equity that rests on the proposition that "it would plainly be impossible that any action or suit could be brought to a successful determination, if alienation pendent lite were permitted to prevail." The Court further affirmed, citing Mawji v US International University & another [1976] KLR 185, that the doctrine of lis pendens "overrides section 23 of the RTA and prohibits a party from giving to others pending the litigation rights to the property in dispute so as to prejudice the other" and that a purchase made of property in litigation "for a valuable consideration and without any express or implied notice in point of fact affects the purchaser in the same manner as if he had notice and will accordingly be bound by the judgment or decree in the suit." 32.The doctrine was enacted into statute by Section 52 of the Indian Transfer of Property Act 1882, and remains applicable to titles issued under the Registration of Titles Act by virtue of Section 107(1) of the Land Registration Act and Section 3(1) of the Judicature Act, Cap 8, as confirmed in Naftali Ruthi Kinyua (supra). 33.Applying these principles, the Court notes that civil proceedings in relation to the Suit Property were instituted as far back as Civil Suit No. 3 of 2011 and that, on 6th June 2016, the subordinate court issued orders prohibiting any transfer or other dealings with the Suit Property pending determination of the proceedings. Those orders were issued in the presence of counsel for the 2nd and 3rd Respondents and were registered against the title at the Lands Registry. The Decree Holder's search on 6th June 2016 confirmed the 2nd and 3rd Respondents as the registered proprietors at that date. 34.The Applicant's reliance on Exhibit HO-1 showing entry No. 23 registered on 9th March 2018 does not assist it. Even accepting that the transfer was registered on that date, it was registered: (a) after the court orders of 6th June 2016 prohibiting dealings with the Suit Property; (b) after those orders had been registered against the title at the Lands Registry; and (c) during the active pendency of both the Magistrate's proceedings and the appeal before this Court. Any such transfer is accordingly infected by lis pendens and the Applicant takes the property subject to the judgment ultimately delivered. As stated in Mawji (supra), every person is presumed to be attentive to what passes in the courts of justice. The Applicant's claimed lack of actual notice is no defence to the doctrine. 35.The Applicant has conspicuously failed to place before the Court any of the completion documents ordinarily expected of a purchaser in a genuine land transaction: no written sale agreement, no valuation report, no evidence of payment of consideration, no evidence of stamp duty, and no duly signed transfer form. In Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General & 4 Others [2017] eKLR, the Court of Appeal applied the test from Katende v Haridar & Company Limited [2008] 2 EA 173, which requires a party claiming the protection of bona fide purchaser for value to prove, inter alia, that it holds a certificate of title, purchased in good faith, had no knowledge of any fraud, purchased for valuable consideration, and was not party to any fraud. On the material before this Court, the Applicant has not discharged this burden. The complete absence of supporting transaction documents, read together with the undisputed registration of court orders against the title before the alleged transfer, is fundamentally inconsistent with the Applicant being a bona fide purchaser for value. 36.The principle of estoppel by conduct is also engaged. As noted in Mulla's Code of Civil Procedure (Seventeenth Edition) at page 197, cause of action estoppel prevents parties to a suit from asserting as against the other party what has been determined by a court of competent jurisdiction. The 2nd and 3rd Respondents conducted themselves throughout this litigation as the registered owners of the Suit Property, filed applications and submissions to that effect, and at no point disclosed any transfer to the Applicant. They are estopped from now doing so by conduct. 37.The Applicant's invocation of the audi alteram partem rule and Article 50(1) of the Constitution is acknowledged and accorded its proper weight. The Court in Pashito Holdings Limited & Another v Paul Nderitu Ndungu & 2 thers [1997] KECA 423 (KLR) affirmed that "he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right." These principles are fundamental. However, the right to be heard must be balanced against the equally fundamental public interest in finality of litigation and against the doctrine of lis pendens, which the law has designed precisely to prevent parties from acquiring interests in disputed property during the pendency of proceedings and then asserting those interests to defeat judgments. The right to fair hearing does not operate to confer a legally protectable interest on a party whose alleged acquisition of the property is itself tainted by breach of court orders and the operation of lis pendens. 38.For these reasons, and in addition to the res judicata bar established above, the Court finds that the Applicant does not demonstrate a legally cognisable interest in the Suit Property capable of grounding joinder. The application for joinder is accordingly dismissed. III. Whether a Stay of Execution Should Be Granted 39.Given the dismissal of the application for joinder, the prayer for a stay of execution also falls away, as there is no longer a pending substantive application to preserve. Even if considered independently, the Applicant has not demonstrated an arguable case with reasonable prospects of success, for the reasons set out above. The balance of convenience does not favour a stay: the Decree Holder has a judgment in its favour that has stood since 2019 and it is not equitable that enforcement be indefinitely deferred by repeated interlocutory challenges from a party whose claimed interest has not been shown to be legally protectable. Accordingly, the prayer for a stay is also dismissed. Final orders 40.In the premises, the court issues the following orders;i.The application dated 21st April 2026 by the Intended Interested Party, Cinatine Enterprise Limited, is dismissed in its entirety.ii.Each party shall bear its own costs of the application. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MAY 2026.E.K. WABWOTOJUDGEIn the presence of:N/A for the Intended Interested Party.Mr. Muuo for the Decree Holder/Appellant.N/A for the 1st Respondent.Mr. Ogolla for the 2nd and 3rd Respondents.Court Assistants: Mary Ngoira and David Ngoosa.