https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5168

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI** **ENVIRONMENT AND LAND CASE APPEAL NUMBER E009 OF 2025** **KARANJA RORIA (DECEASED) REPRESENTED BY GRACE WARII RORIA (ADMINISTRATOR AD LITEM) ………………………………………………APPELLANT** **VERSUS** **CITY COUNCIL OF NAIROBI……………………………………..…………RESPONDENT** **JUDGMENT** **1. Introduction.** 1.Before this Court is an appeal arising from the Ruling of Honorable Pamela Achieng (CM) delivered on 23rd October 2025 in Millimani MCELCMISC/E181/2025- City Council of Nairobi v. Karanja Roria (“the trial court”). In that impugned ruling, the trial court held: “The application is premised on the grounds on its face. The respondent filed a Replying Affidavit sworn by W.S. Ogola, the Acting County Solicitor, Nairobi City County, dated 21st July 2025. I have considered the application and the response filed. I note that reference is made to a judgment entered in Civil Suit No. 5 of 2013. The present matter which was filed as a Miscellaneous application basically seeks setting aside of the said judgment for the reason that the defendant was already deceased when the same was filed. There is indication upon perusal of the documents filed herein that the court file in Civil Suit No. 5 of 2013 went missing. The prayers sought herein cannot however be granted through a Miscellaneous application. The applicant ought to seek for reconstruction of the file and the same be reconstructed before the prayers herein are sought. It was unprocedural for the applicant to seek the prayers herein through a Miscellaneous application. I therefore proceed to strike out the present application with costs to the respondent.” 2. The Appellant being aggrieved with the decision filed the appeal vide a Memorandum of Appeal dated 27th October 2025 and grounds of appeal as follows: “1. The Learned Magistrate erred in law and fact by dismissing the application on the technical procedural ground that it was brought by way of a Miscellaneous Application, while: 1. It was the court registry itself, not the Appellant, that allocated the matter Milimani Misc. Civil Application No. 04 of 2025, which was later transferred to the Environment and Land Court Division, and registered afresh as Milimani MCELC Misc. Cause No. E181 of 2025. b) Article 159(2)(d) of the Constitution commands that justice shall be administered without undue regard to procedural technicalities, a principle which the trial court ignored to the Appellant's prejudice. c) Appellant's motion sought to cure a fundamental jurisdictional nullity, defect that struck at the root of the original suit and rendered all ensuing proceedings void ab initio. Such a defect transcends procedural form. 2. The Learned Magistrate erred in fact and law by holding that the Appellant ought to have applied for reconstruction of the missing file, whereas the record clearly shows that: a)The Appellant had already successfully pursued the reconstruction of the missing court file under Milimani MCELC Misc. Cause No. E559 of 2025, which was duly closed after completion. b)The original file, Nairobi City Court No. 5 of 2013, through extensive correspondence dated 18 December 2024, 5 January 2025, 15 January 2025, 2 May 2025, 12 May 2025, and 9 June 2025 was indeed eventually located and formally transferred from Nairobi City County Law Courts to Milimani Commercial Courts under cover letter dated 27 May 2025 and assigned Milimani Misc. Civil Application No. 04 of 2025. c)The file's subsequent transfer and renumbering within the Magistrates Court ELC Division as MCELC Misc. Cause No. E181 of 2025 was a purely administrative process by the registry, and it was therefore a manifest error to visit such procedural occurrences upon the litigant. 3. The learned magistrate erred in law and fact by failing to address the substantive, meritorious issue of law that goes to the root of the court's jurisdiction: that the entire suit in Nairobi City Court Case No. 5 of 2013 was nullity ab initio for having been instituted, prosecuted, and judgment entered against a person who was already deceased since 2 December 2002, 11 years prior to the institution of the suit. 4. The learned magistrate failed to appreciate that the procedural vehicle used to bring the substantive jurisdictional issue before the court was inconsequential compared to the fundamental constitutional and legal violations occasioned by proceeding with a suit against a deceased person, which violates the right to fair hearing under Article 50 of the Constitution; and the principle of natural justice audi alteram partem. 5. The learned magistrate's decision is contrary to evidence which unequivocally demonstrated through death certificates, grant of letters of administration, and court records that the foundational suit was void, rendering all subsequent proceedings, including the default judgment, auction sale, vesting orders, and eventual title, incurably bad.” 3.The Appellant sought the following reliefs: Allow this Appeal. Set aside the Ruling and Order of the subordinate court delivered on 23 October 2025 Substitute the same with an order granting the Appellant's Notice of Motion dated 13 June 2025 in its entirety, thereby: a. Striking out Nairobi City County Civil Case No. 5 of 2013 as nullity ab initio. b. Setting aside the default judgment and all consequential orders therefrom. iv. Award the costs of this Appeal and in the court below to the Appellant.” **Background/Litigation History:** 4.The Nairobi City filed the suit at the Chief Magistrates’ Commercial Court cause no 5 of 2013 on the of February 2013, where it sought for prayers to recover outstanding land rates for Land Title NAIROBI/BLOCK 110/360 from the Late Karanja Roria as follows: “REASONS WHEREFORE the Plaintiff prays for Judgment against the Defendant for: (a) Principal sum of Kshs. 284,445.00. (b) Interest accrued on the principal sum up to 29th February 2013, amounting to Kshs. 3,122,028.00. (c) Costs of this suit and interest thereon at Court rates from the date of filing until payment in full. (d) Any other relief this Honorable Court shall deem just to grant in the interest of justice.” 5.The Court entered interlocutory judgment in default of appearance and defense on 18th June 2013, following which the matter was concluded and the court file closed. Subsequently, on 25th September 2013, the Court issued an order for attachment of the suit property. Pursuant to that order, the property was sold by public auction on 19th December 2013 by I.P.G. Waweru t/a Ideal Auctioneers to Anne Ngiana Rama for Kshs. 8,500,000.00, and a Certificate of Sale was thereafter issued on 20th January 2014. 6.Anne Ngiana Rama filed the suit ELC No: E505 of 2024 in a bid to have Ms. Grace Roria vacate the premises filed an application dated 27th May 2021 which was heard, determined and the court ordered: - **“UPON READING the application presented to this Court on 27th day of May 2021 by the counsel of the Applicant and supported by the affidavit of ANN NGAINA RAMA sworn on 25th May 2021.** **AND WHEREAS the application came for inter partes hearing on the 24th day of June 2021 before HON. M. W. NJAGI (MS), SPM, in the presence of counsel for the Applicant and counsel for the Plaintiff/Respondent;** **AND UPON HEARING the said counsels:** **IT IS HEREBY ORDERED:** **THAT the prohibitory order given on the 24th October 2013 on the suit property L.R. Nairobi/Block 110/360 be and is hereby reviewed and vacated.** **THAT costs be in the cause”** 7.Subsequently Ms. Anne Ngiana Rama vide Originating summons dated 16th June 2014 called for a vesting order which was issued by the court on the 18th June 2018 as follows: a) “UPON READING the application dated 16th July 2014 and presented by the advocate for the Purchaser/Applicant and the annexures thereto. b) WHEREAS THIS MATTER coming up for inter partes hearing on 18th June 2018 before Hon. P.N. Gesora (Mr.), Chief Magistrate, in the presence of the Advocates for the Plaintiff and in the presence of the Decree Holder and the Debtor. c) AND UPON HEARING the said Counsel; d) IT IS ORDERED e) THAT the vesting order is hereby granted to the Purchaser. f) THAT the costs be in the cause. 8.The firm of Kibatia & Co. Advocates was instructed by the Appellant and filed Milimani Commercial Courts Misc. Application No. E559 of 2025 on 7th March 2025, seeking the reconstruction of the missing court file in Commercial Court Civil Case No. 5 of 2013.However The original file, Nairobi City Court Civil Case No. 5 of 2013, was traced and formally transferred from the Nairobi City County Law Courts to the Milimani Commercial Courts and assigned Milimani Misc. Civil Application No. 04 of 2025 and subsequently renumbered in the registry as MCELC Misc. Cause No. E181 of 2025. 9.Grace Roria- the administrator of the Estate of the Late Karanja Roria, filed an application dated 13th June 2025 seeking the following orders 1. Spent. 2. THAT the Defendants/Applicant's advocates Kibatia and Company Advocates be granted leave to come on record. 3. THAT the suit against the late Karanja Roria be and is hereby struck out and all consequential orders entered against him regarding the suit property NAIROBI/BLOCK 110/360 be and are hereby set aside. 4. Those costs of this Application be provided for” 10.The learned trial court delivered its ruling in MCELC Misc. Cause No. E181 of 2025 on 23rd October 2025, which decision forms the subject of the Appeal. **Directions of the Court;** 11. The Appeal was directed to be disposed of by written submissions to which the Appellant complied. The Respondent did not comply despite being granted leave on 3rd June 2026 and 8.7.2026. **Submissions by Parties:** 12.The Appellant in her submissions dated 10th March 2026 submitted on the following issues, a) Whether the Learned Magistrate erred in law and fact in dismissing the Appellant’s application on procedural technicalities instead of determining the same on its merits. b) Whether the Learned Magistrate failed to properly evaluate and give due consideration to the movement history of the file demonstrating that the file before her was a consolidation of the reconstructed and original file. c)Whether proceedings instituted against a deceased person and all consequential orders arising thereof are a nullity in law. whether the appellant is entitled to the reliefs sought. 13. The Appellant argued that the learned trial magistrate wrongly prioritized procedural technicalities over substantive justice, contrary to Article 159(2)(d) of the Kenyan Constitution, which requires courts to focus on the merits of a case rather than procedural errors. The Appellant contended that administrative actions by the court registry being file allocation, transfer, and renumbering were beyond their control and should not have led to striking out of the application citing the case of **Raila Odinga v Independent Electoral and Boundaries Commission and others (2017)eklr** and Wandi v Muchira(2025)eklr , where the courts emphasized that procedural missteps should not override the delivery of substantive justice unless they cause real prejudice or go to jurisdiction. 14.The Appellant submitted on extensive efforts to trace, reconstruct, and consolidate the missing court file, which the trial court failed to properly consider this history and the evidence of their efforts. The appellant argued that administrative actions by court staff are beyond the litigant's control and should not be a ground for penalizing a party citing the case of Njeru v Kinanda, which clarifies that procedural rules are meant to facilitate, not hinder, the fair resolution of disputes 15.The Appellant asserted that the original suit was instituted against a person, Karanja Roria, who had died eleven (11) years prior, rendering the proceedings a nullity from the onset placing reliance on the case of Geeta Bharant Shah & 4 Others v Omar Said Mwatayari [2009] eKLR, Viktar Maina Ngunjiri & 4 Others v Attorney General & 6 others [2018] eKLR, and Pratap Chand Mehta v Chrisna Devi Menta reaffirmed A suit filed against a deceased person is a nullity ab initio, incapable of cure by amendment or substitution, and all consequential proceedings, orders and judgments are void. 16.The Appellant urged the appellate court to set aside the trial court’s ruling, strike out the original suit as a nullity, set aside all consequential orders (including default judgment and title transfers), and award costs to the appellant. **Issues for determination:** 17.This Court’s duty to sit as the first Appellate court is guided by principles drawn from the case of Selle and Another vs. Associated Motorboat Company Ltd & Others, [1968] EA 123, where Sir Clement De Lestang, stated: -“(i) An appeal from the High Court is by way of a re-trial and the Court of Appeal is not bound to follow the trial judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with the evidence generally; (ii) there was no valid reason for interfering with the learned judge’s finding on the facts; 18. The Court in Mbogo & Another v Shah [1968] EA 93 coined that: “(i) in the circumstances the judge exercised correctly his discretion to refuse the Application to set aside the judgement; (ii) a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice.” 19.It is trite from the cited case law above that this court will interfere with the finding of a trial magistrate on grounds that the court misdirected itself in a matter and arrived at a wrong decision, wrongly exercised its discretion thereby occasioned a miscarriage of justice. Upon considering the entire record of appeal, Memorandum and grounds raised in the appeal together with the Appellant’s written submissions the following issues are for determination: 1. Whether the Learned Magistrate erred in law and fact in dismissing the Appellant’s application dated 13.6.2025 on procedural technicalities instead of determining the same on its merits. 2. Whether appellant is entitled to the reliefs sought **Analysis and determination:** 20.. Whether the Learned Magistrate erred in law and fact in dismissing the Appellant’s application on procedural technicalities instead of determining the same on its merits. 21.The Appellant contends that the trial court without taking into consideration the administrative lapses of tracing the file, and subsequently renumbering the file was not a mistake to be borne by them, citing Article 159(2)(d) of the Constitution of Kenya, 2010, which provides that justice shall be administered without undue regard to procedural technicalities as follows: 2)-In exercising judicial authority the courts and tribunals shall be guided by the following principles— 1. ***justice shall be done to all, irrespective of status;*** 2. ***justice shall not be delayed;*** 3. ***. …*** 4. ***. justice shall be administered without undue regard to procedural technicalities;”*** 22.In the case of **Abdirahman Abdi v Safi Petroleum Products Ltd & 6 others [2011] KECA 183 (KLR)** where the court held that: - **“The overriding objective in civil litigation is a policy issue which the court invokes to obviate hardship, expense, delay and to focus on substantial justice. It is, however, not a principle the court may invoke without giving the parties an opportunity of being heard on the matter. In the matter before us the parties were given an opportunity to express their views. Mr. A.B. Shah, was however, reluctant to express a view on the matter because he did not think he needed to do so in absence of an application for extension of time to serve a notice of appeal. That was despite the fact that the court urged him more than once to do so. In situations as the one before us what a court is obliged to do is to give a party an opportunity to be heard. If for whatever reason the party concerned does not avail himself of that opportunity, he should not complain that he was denied a hearing.** **In the days long gone the court never hesitated to strike out a notice of appeal or even an appeal if it was shown that it had been lodged out of time regardless of the length of delay. The enactment of sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya, and later, Article 159(2)(d) of the Constitution of Kenya, 2010, changed the position. The former provisions introduced the overriding objective in civil litigation in which the court is mandated to consider aspects like the delay likely to be occasioned, the cost and prejudice to the parties should the court strike out the offending document. In short, the court has to weigh one thing against another for the benefit of the wider interests of justice before coming to a decision one way or the other. Article 159 (2)(d) of the Constitution makes it abundantly clear that the court has to do justice between the parties without undue regard to technicalities of procedure. That is not however to say that procedural improprieties are to be ignored altogether. The court has to weigh the prejudice that is likely to be suffered by the innocent party and weigh it against the prejudice to be suffered by the offending party if the court strikes out its document. The court in that regard exercises judicial discretion.** 23.Further in the case of **James Mangeli Musoo v Ezeetec Limited [2014] KEELRC 761 (KLR),** the court held: **“The other issue to fathom herein is the meaning of technicalities and what indeed is undue regard to technicalities? Nobody seems to have defined or even attempted to define the term technicality, not even dictionaries of law. A technicality, to me is a provision of law or procedure that inhibits or limits the direction of pleadings, proceedings and even decisions on court matters. Undue regard to technicalities therefore means that the court should deal and direct itself without undue consideration of any laws, rules and procedures that are technical and or procedural in nature. It does not, from the onset or in any way, oust technicalities. It only emphasizes a situation where undue regard to these should not be had. This is more so where undue regard to technicalities would inhibit a just hearing, determination or conclusion of the issues in dispute.”** 24.The Affidavit evidence placed before the Court demonstrates the history and movement of the court file from Nairobi City Court to Milimani Commercial and Milimani Environment and land Court that comprised the loss, reconstruction of lost file and recovery of original file too 25.The Affidavit evidence shows that the original file, Nairobi City Court Civil Case No. 5 of 2013, was traced through correspondences dated 18th December 2024, 5th January 2025, 15th January 2025, 2nd May 2025, 12th May 2025, and 9th June 2025. It was thereafter formally transferred from the Nairobi City County Law Courts to the Milimani Commercial Courts under a cover letter dated 27th May 2025 and assigned Milimani Misc. Civil Application No. 04 of 2025. Subsequently, pursuant to the Court's order of 17th June 2025, the matter was transferred to the Environment and Land Court and administratively renumbered by the registry staff as MCELC Misc. Cause No. E181 of 2025 as per the cts extracts annexed to the record of appeal. The transfers and renumbering of the file were purely administrative acts of the court registry staff that did not affect the substance of the pleadings though affected the continuity of proceedings. 26. Was the trial court’s striking out of the application serving justice? The court in the case of D T Dobie & Co (K) Ltd vs Muchina & another [1982] KLR 1 held that; “Striking out pleadings is a drastic step, which should be a measure of last resort and should be in rare and extremely exceptional cases. 27 Had the various court files been called for and placed before the learned trial magistrate to ascertain the substantive issue for trial therein, iam certain the learned trial magistrate would have determined the application dated 13.6.2025 otherwise. This court concurs with the Appellant that she was denied the right to a fair hearing, as the application was never determined on its merits. The learned trial magistrate therefore erred in law in striking out the Application dated 13.6.2025 on procedural technicalities, contrary to the dictates of natural justice. The appeal succeeds on this ground (4). 28. As to ground 3 of the appeal this court could not conclusively determine the substantive issue of proceedings instituted against a deceased person, and all consequential orders arising therefrom, are a nullity in law as I never had the benefit of interacting with all the files touching the subject matter at the magistrate's court. In the circumstances, this Court finds that the application dated 13.6.2025 ought to be remitted to Milimani Magistrates' Court Environment and land court division for hearing and determination on its merits. 29.As to the question of cost. the Supreme Court in the case of **Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC. Petition No. 4 of 2012: [2014] eKLR** settled the law on award of costs: that costs follow the event, and that the Court has the discretion in awarding costs. Costs therefore follow events. In the final analysis it is hereby ordered that: a) The Appeal is meritorious and is hereby allowed. b) The ruling of the learned Trial Magistrate (Hon P Achieng-CM) delivered on 23rd October 2025 is hereby set aside in its entirety. c. The matter is remitted to the Chief Magistrate's Court Milimani (Environment and land Division) for hearing and determination of the application dated 13.6.2025 on merits before a magistrate clothed with jurisdiction other than Hon P Achieng (CM). It is so ordered accordingly. **DATED, SIGNED AND DELIVERED ON THIS 31ST DAY OF JULY 2026 AT VOI** **J. A. ORWA** **JUDGE.** **In the presence of** **Ms. Wariera for Njoroge for the Appellant** **Mr. Ochola for the Respondent** **Mr. Letisia - Court Assistant**