Academic Commentary on the tension between procedural compliance and the constitutional imperative of fair hearing under Article 50(1) of the Kenyan Constitution: The Case of BOD County Referral Hospital Kitale & Another v DN (Civil Appeal E043 of 2023)

I. Introduction

This case explores the tension between procedural compliance and the constitutional imperative of fair hearing under Article 50(1) of the Kenyan Constitution. It presents a compelling judicial reflection on the effectiveness of electronic service, procedural default, and judicial discretion in the setting aside of ex parte judgments. The High Court's approach is a significant development in Kenyan civil procedure, especially in the context of access to justice in the digital age.

 

II. Procedural Justice in the Age of Digital Communication

At the heart of the dispute was the validity of electronic service via email, purportedly used to notify the Appellants of the hearing date. The court’s decision hinges on the interpretation of Order 5 Rule 22B of the Civil Procedure Rules, 2010, which mandates that service through email must be verifiable. In this instance, the absence of a delivery or read receipt was deemed fatal.

A. The Court’s Rationale

The court rightly rejected the notion that an email is deemed served upon being sent. The requirement of proof of delivery ensures that the recipient has actual or constructive knowledge of the proceedings—a safeguard against abuse and procedural shortcuts.

This decision is consistent with jurisprudential trends in other common law jurisdictions (e.g., the UK’s CPR Part 6), which have gradually embraced electronic service but also imposed strict evidentiary standards to confirm delivery. Thus, the court affirmed that technology must serve justice, not erode it.

 

III. The Right to a Fair Hearing and Judicial Discretion

The denial of the Appellants’ application to set aside the ex parte judgment was another focal point. The High Court took issue with the trial magistrate’s failure to properly weigh the Appellants’ explanation for non-attendance, the lack of willful default, and the substantial nature of the defense.

A. Constitutional Overlay: Article 50(1)

Article 50(1) enshrines the right to a fair and public hearing, a principle the court treated as non-derogable and foundational to Kenya’s democratic legal order. The judgment reflects a shift toward substantive constitutional reasoning, wherein procedural rules must yield when they undermine constitutional values.

B. Discretion as a Tool for Justice

The trial court’s refusal to set aside the judgment demonstrated a mechanical application of procedure that failed to serve justice. In contrast, the appellate court used discretion creatively and judiciously, aligning with Kenyan courts' broader post-2010 jurisprudence that prioritizes access to justice over rigid technicality.

 

IV. Implications for Civil Practice and E-Justice

This decision sets an important precedent for electronic service in litigation, particularly as Kenyan courts digitize and adopt virtual platforms post-COVID-19.

Key Implications:

1.       Proof of electronic service must meet the same standards as physical service. Courts are likely to demand email logs, delivery confirmations, or affidavits from IT officers.

2.       Lawyers must exercise due diligence when relying on electronic means. Assuming that an email "sent" is "received" could amount to professional negligence.

3.       Courts may become more receptive to setting aside default judgments where procedural irregularities in electronic service are shown.

 

V. Normative Reflection

This case illustrates a deeper jurisprudential point: procedure is not an end in itself but a conduit for justice. As Kenya modernizes its judicial infrastructure, cases like this push back against the overformalization of technical rules. They invite judges to be guardians of fairness, especially in cases involving vulnerable parties—here, a minor victim of alleged medical negligence.

Moreover, the court’s reasoning strengthens public trust in judicial processes by showing that the judiciary remains committed to accountability and equity, even when litigants fail to meet procedural expectations due to external failures like poor communication or IT systems.

 

VI. Conclusion

BOD County Referral Hospital Kitale & Another v DN is a landmark in affirming that procedural rigor must coexist with constitutional fidelity. It signals a maturing jurisprudence that embraces innovation without compromising fairness. As Kenya continues integrating digital tools into court processes, this case will likely serve as a reference point for balancing efficiency with equity in civil procedure.

Legal Brief of the Case available here 

On Whether the termination of the Claimant’s employment was substantively and procedurally fair: The Case of Pamba v Kenya Hospital Association (for and on behalf of The Nairobi Hospital) & Another [2025] KEELRC 1776 (KLR)

LEGAL BRIEF: 

I. INTRODUCTION

This brief analyzes the judgment delivered in Pamba v Kenya Hospital Association & Another, where the Employment and Labour Relations Court (ELRC) addressed the procedural requirements surrounding the extension of probationary contracts under Section 42 of the Employment Act, 2007. The Court’s decision reinforces employee protections by clarifying the lawful process for extending probation periods and affirming the right to a fair hearing before termination. Notably, the Court declared the termination of the Claimant unlawful and awarded maximum compensation for lack of procedural fairness.

II. STATEMENT OF FACTS

The Claimant, Mr. Pamba, was employed by the Kenya Hospital Association, trading as The Nairobi Hospital, under a probationary contract. At the conclusion of the agreed probationary term, the Respondents terminated the Claimant’s employment, alleging that he remained on probation and was therefore not entitled to the procedural safeguards provided under Section 41 of the Employment Act.

The Respondents justified their actions by invoking Section 42(1) of the Act, which (prior to being declared unconstitutional) excluded probationary employees from the right to a hearing prior to termination. They argued that the probationary period had been validly extended, thereby exempting the Claimant from the full procedural requirements of termination.

The Claimant, however, disputed the legitimacy of the purported extension. He contended that the extension was unilaterally imposed without his knowledge or consent, contrary to Section 42(2) of the Employment Act, which mandates that any extension of a probationary period must be mutually agreed upon in writing. Furthermore, the extension had not complied with the Respondents’ internal HR policies. 

III. ISSUES FOR DETERMINATION

1. Whether the probationary period had been lawfully extended under Section 42(2) of the Employment Act, 2007.
2. Whether the Claimant was entitled to procedural safeguards under Section 41 at the time of termination.
3. Whether the termination of the Claimant’s employment was substantively and procedurally fair.
4. Whether the Claimant was entitled to remedies for unfair termination.

IV. COURT'S HOLDING AND LEGAL ANALYSIS

A. Invalid Extension of Probation

The Court found that the Respondents failed to comply with the statutory requirement under Section 42(2) of the Employment Act, which provides that a probationary period may only be extended with mutual consent and in writing. The Court further noted that the Respondents failed to adhere to their internal HR policy governing probation management and confirmation procedures.

Accordingly, the Court held that the Claimant’s probation period had expired by operation of law, and in the absence of a valid extension, the Claimant was deemed to have been confirmed in his position upon the lapse of the initial probation period.

B. Right to Procedural Fairness

Having been deemed a confirmed employee, the Claimant was entitled to the full protections of Section 41 of the Employment Act. The Court emphasized that any termination must comply with the principles of procedural fairness, including:

• Notification of the reasons for intended termination;
• An opportunity to respond to the allegations in the presence of a fellow employee or union representative.

The Respondents’ reliance on the now-invalidated Section 42(1) to bypass the hearing requirement was misplaced, especially since the probationary status had lapsed.

C. Unlawful and Unfair Termination

The Court found that the termination was procedurally and substantively unfair. It noted that the Respondents had failed to provide any valid justification for the termination and had also failed to observe the mandatory hearing procedure. The Court declared the termination unlawful and unfair under Sections 41, 43, and 45 of the Employment Act. 

V. REMEDIES AWARDED

In light of the severity of the procedural violations and the Respondents’ failure to act in good faith, the Court awarded the Claimant maximum compensation for unfair termination. The Court noted that the unlawful termination had not only deprived the Claimant of his livelihood but also violated his right to fair labour practices under Article 41 of the Constitution.

VI. SIGNIFICANCE OF THE DECISION

This judgment offers crucial clarification on the following legal principles:

• Extension of probationary contracts must be done in strict compliance with Section 42(2) of the Employment Act and the employer’s internal HR policies. Unilateral extensions are void and unenforceable.
• A probationary employee who continues working beyond the agreed probation period without lawful extension is deemed automatically confirmed.
• The procedural protections under Section 41 apply to all confirmed employees, and failure to observe them renders a termination unlawful.
• Section 42(1) of the Employment Act, which previously allowed termination without a hearing during probation, has been declared unconstitutional, enhancing procedural protections for all employees. 

VII. CONCLUSION

The Pamba decision serves as a cautionary precedent for employers, reaffirming the need to adhere to both statutory and internal procedures when managing probation and termination. The Court's strict interpretation of Section 42(2) ensures that probationary employees are not arbitrarily excluded from protections afforded to confirmed employees. Employers are now on notice that failure to obtain mutual written agreement for probation extensions, or to provide a fair hearing upon termination, exposes them to significant legal and financial liability.

Key takeaways on Fraudulent titles and disputes over land ownership: The case of competing land titles and the question of superior ownership

• Fraudulent actors may exist within entities such as the Ministry of Lands, Survey of Kenya, and local authorities. Actors are forging deed plans, titles, allotment letters, transfer instruments, official stamps, official signatures therefore buyers should be cautious and ensure the root title of the land was legally and legitimately acquired. Landowners should maintain proper records of all relevant land documents. The original deed plan played a crucial role in this case.
• The importance of root title searches was emphasised, as seen in the Dina Management Limited vs County Government of Mombasa & 5 Others (2023) case, where the Supreme Court stressed the necessity of proving the root title and ensuring the acquisition was formal, legal, and free from encumbrances not recorded in the land register. 
• A holistic approach to due diligence is essential, including site visits and verifying the root title. Continuous occupation by the Original Sellers of the property was a key point of evidence in this case.
• Inter-authority collaboration is needed to close loopholes in land transactions. For instance, in this case, Nairobi City County acknowledged it had no obligation to verify the authenticity of documents presented for development approval (even though the Appellant had obtained such approval to build apartments).
• Legal practitioners must adhere to the correct legal processes in land transfers, lease extensions, subdivisions, and changes of use.
• Land rent and rates payments in the name of a person do not automatically prove ownership of the land title. These payments only demonstrate compliance with title conditions, not ownership.

Courtesy of : JK

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Key Takeaways for potential purchasers and land owners (to ensure there exists a good root of title and in relation to indisputable due diligence in property transactions): The Principles Affirmed By The Supreme Court In Dina Management Case

A. Due Diligence is Paramount

The Court underscored that prospective purchasers of land must go beyond routine searches at the land registry. Comprehensive due diligence now includes:

• Investigating the root of title to ensure that the initial allocation and subsequent transfers of land rights complied with constitutional and statutory procedures;
• Physically inspecting the land to verify occupation, use, zoning, and any competing claims;
• Scrutinizing the legality of any original grant or alienation, especially where the land in question is situated near public utilities or reserves.

This principle recognizes that a registered title is not inherently indefeasible where there is evidence that the title originated from a transaction that was procedurally flawed or illegal. Purchasers are therefore charged with an affirmative duty of inquiry, and failure to meet this standard may result in the loss of purported ownership rights.

B. Limitation of the Doctrine of Bona Fide Purchaser for Value Without Notice

The Court limited the scope of the long-standing doctrine protecting innocent purchasers. While the doctrine traditionally shielded purchasers who acquired land without notice of defect in title, the Court clarified that:

• The doctrine does not apply where the original allocation of the land was unlawful—particularly where public land is involved;
• No amount of consideration or lack of knowledge can validate an invalid title derived from unconstitutional or irregular allocation of public resources.

Thus, even a genuinely innocent purchaser cannot assert ownership where the root of title is impugned.

C. Indefeasibility of Title is Not Absolute

The Court rejected the notion that a certificate of title conclusively proves ownership. Instead, under the current legal regime—including the Land Registration Act, 2012, and the Constitution of Kenya, 2010:

• A certificate of title serves only as prima facie evidence of ownership;
• Courts retain the jurisdiction to interrogate and annul titles acquired through fraud, illegality, misrepresentation, or procedural impropriety;
• The indefeasibility of title is therefore conditional upon the legality of the process through which the title was obtained.

This reaffirms the principle that land rights cannot be founded on unlawful acts, and that the judiciary is empowered to rectify registrable interests that violate the law.

D. Legitimate Expectation in Lease Renewals

The Court also clarified the doctrine of legitimate expectation in the context of leasehold renewals over public land:

• Lessees who timely apply for lease renewal before expiry may hold a legitimate expectation that such applications will be considered fairly and within a reasonable time;
• However, legitimate expectation does not confer any proprietary rights or guarantee automatic renewal;
• The state retains discretion over public land allocations and is not legally bound to extend leases absent compliance with statutory and policy frameworks.

This serves as a caution to leaseholders not to assume continuity of rights post-expiry and underscores the importance of initiating formal renewal processes well in advance.

E. Reversion of Government Land Upon Lease Expiry

The Court reiterated the principle that land leased from the government reverts automatically to the state upon expiry of the lease term unless formally renewed:

• The continued occupation or use of public land by a former lessee following lease expiry does not confer legal or equitable interest;
• Any acts of possession or improvement made after expiry, without lawful renewal, do not create enforceable rights;
• This reinforces the sovereignty of the state over public land and precludes adverse possession claims against the government in such contexts.

CONCLUSION (SUPPLEMENT): LEGAL IMPLICATIONS

The decision in Dina Management Limited must be viewed not only as a dispute over land but as a jurisprudential restatement of the public trust doctrine, constitutional supremacy, and the evolving expectations of land governance in Kenya. Going forward, parties involved in land transactions must recognize that titles are no longer sacrosanct instruments immune from judicial scrutiny. The message is clear: Due diligence is no longer optional—it is an essential legal obligation.

On the scope of due diligence required in property transactions: The Case of Dina Management Limited v County Government of Mombasa & 5 Others

LEGAL BRIEF

 

IN THE SUPREME COURT OF KENYA

Case Title: Dina Management Limited v County Government of Mombasa & 5 Others
Petition No.: 8 (E010) of 2021
Decision Date: 21 April 2023

 

I. INTRODUCTION

This legal brief analyzes the Supreme Court of Kenya’s landmark decision in Dina Management Limited v County Government of Mombasa & 5 Others, which redefined the scope of due diligence required in property transactions and reaffirmed the constitutional and statutory principles governing public land. The ruling underscores that ownership of a title deed is not conclusive evidence of good title when the root of the title is defective or unlawfully obtained. This case has far-reaching implications for property investors, legal practitioners, and land registries in Kenya.

II. STATEMENT OF FACTS

In 2017, the County Government of Mombasa initiated enforcement action against Dina Management Limited (hereinafter “Dina”), asserting that a parcel of beachfront property registered in Dina’s name constituted public land. The County Government alleged that the property had been improperly alienated and remained part of the coastal reserve designated for public utility. Subsequently, the County Government forcefully entered the property, demolished the perimeter wall, and cleared the land.

Dina contended that it was the legal proprietor, having acquired the title from a chain of registered transfers traceable to a grant initially allocated to the former President of the Republic, H.E. Daniel T. Arap Moi. Dina claimed protection under the doctrine of a bona fide purchaser for value without notice.

Litigation ensued, progressing through the Environment and Land Court, the Court of Appeal, and ultimately culminating in the Supreme Court.

III. ISSUES PRESENTED

1.         Whether the initial allocation of public beachfront land to private individuals, including H.E. Daniel T. Arap Moi, was procedurally and legally valid.

2.         Whether subsequent purchasers, including Dina, acquired valid legal or equitable interests in the property.

3.         To what extent the doctrine of bona fide purchaser for value without notice applies where the root of title is contested or defective.

4.         What constitutes a valid root of title in property transactions under Kenyan law.

IV. HOLDING AND RATIO DECIDENDI

The Supreme Court upheld the judgments of the Environment and Land Court and the Court of Appeal, declaring that:

• The subject parcel of land formed part of the public land reserved for public access and use. Its alienation to private persons, including the initial grantee, was unlawful and contravened Article 62 of the Constitution of Kenya.
• The allocation and issuance of title to H.E. Daniel T. Arap Moi lacked procedural and legal validity. As such, no lawful or equitable interest could flow from that transaction to subsequent transferees, including Dina.
• The doctrine of bona fide purchaser cannot shield a purchaser who fails to interrogate the root of title, especially when the original allocation is irregular or unlawful.
• A title document alone does not confer indefeasible ownership if the process of issuance was contrary to law.

V. LEGAL ANALYSIS

A. Invalid Root of Title Nullifies Subsequent Transfers

The Court emphasized that a chain of title built upon an illegal or unprocedural grant is inherently defective. The sanctity of title does not extend to titles that originate from unlawful allocations, particularly of public land. Therefore, all derivative titles stemming from such root are null and void ab initio.

B. Limitations of the Bona Fide Purchaser Doctrine

The decision significantly narrows the protection previously accorded to innocent purchasers under the doctrine of bona fide purchaser for value. The Court ruled that this doctrine is inapplicable where the root of title is impugned, thus placing a heightened burden on purchasers to verify the legality of the title beyond registry searches.

C. Due Diligence Requirements in Property Transactions

The ruling mandates a more rigorous standard of due diligence in land transactions. Purchasers must conduct thorough investigations into the origin, procedure, and legality of title grants. Reliance solely on official land registry searches, which may not reflect the historical legitimacy of the title, is insufficient.

 

VI. IMPLICATIONS FOR PROPERTY LAW IN KENYA

This case sets a binding precedent that will inform all future disputes involving public land and contested title deeds. Key takeaways include:

• Legal and Equitable Interest: No legal or equitable interest passes if the original grant is unlawful.
• Expanded Due Diligence: Buyers must examine historical allocations, compliance with planning and environmental laws, and conformity with constitutional provisions on land.
• Land Registry Modernization: The case exposes systemic weaknesses in the land registration process and underscores the need for digitization and transparency in land records to mitigate future risks.

 

VII. CONCLUSION

The Supreme Court’s decision in Dina Management Limited serves as a cautionary tale for property investors and legal practitioners. It reaffirms that a title deed is not conclusive proof of ownership where the genesis of the title is illegal. Purchasers must now conduct exhaustive investigations into the root of title, and failure to do so could result in significant financial and legal exposure. This case is poised to fundamentally reshape land acquisition practices in Kenya, promoting accountability, transparency, and respect for public land.