Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 35 of 2013· [2014] KECA 445 (KLR)

Euton Njuki Makungo v Republic & 2 others [2014] KECA 445 (KLR)

Court of Appeal of Kenya
22 July 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeOTOtieno-Odek
3,146 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that only a registered landowner or someone with a registered power of attorney can challenge a title cancellation through judicial review.

What this practically means

#

Executive summary

#
This is a first appeal to the Court of Appeal at Nyeri against a ruling of the High Court at Embu (Ong'undi, J.) dated 20th February 2013 in Judicial Review No. 57 of 2011, declining to grant an order of certiorari to quash a decision of 24th May 2011 by the District Commissioner, Mbeere North, acting as the Minister's representative in Land Adjudication Appeal No. 409 of 2003, which cancelled a title over Land Parcel No. Mbeere/Kirima/1448 issued to Mwaniki Mwige and reallocated the land to Nthiga Mungori, represented by the 3rd respondent. The appeal challenged the High Court's findings on the appellant's locus standi, the Minister's jurisdiction to cancel an allegedly first-registration title, and alleged bias by the District Commissioner. The Court, in a unanimous joint judgment, framed three issues and dismissed the appeal. First, the appellant, not being the registered proprietor and having neither a power of attorney nor an appointment as legal representative of the living registered proprietor, had no locus standi to institute judicial review proceedings under the Civil Procedure Act. Second, since an appeal to the Minister was pending when the title was issued, the Registrar had no jurisdiction to register the parcel, rendering that action null and void; the Minister's representative accordingly had jurisdiction to hear the appeal. Third, no bias was proved and no self-evident error on the face of the record was demonstrated. The Court affirmed the decision of the High Court and dismissed the appeal with costs to the 3rd respondent.

Key legal issues

#
01

Locus standi of a person representing a living registered proprietor without a power of attorney

Holding

The appellant had no locus standi; proceedings under the Civil Procedure Act require a duly authorized legal representative, and a power of attorney must be registered.

Reasoning

The registered proprietor Mwaniki Mwige was alive and the appellant was not the registered proprietor. No person may deal with another's land unless duly authorized. The appellant admitted he had no power of attorney and was not a duly appointed legal representative. Representation under the Land Adjudication Act does not confer capacity in proceedings under the Civil Procedure Act, whose requirements are distinct. The Court concurred with the learned Judge's finding.

p. 4
02

Jurisdiction of the Minister to cancel a title issued while an appeal was pending

Holding

The Minister's representative had jurisdiction; the title issued during a pending appeal was null and void because the Registrar had no jurisdiction to register while adjudication proceedings were on going.

Reasoning

The disputed parcel was within an adjudication area and an appeal to the Minister was pending when the title was issued. The appellant and registered proprietor had knowledge of the pending appeal, so they could not rely on the absence of a restriction in the register; the maxim of clean hands applied. The Registrar's action in issuing the title was null and void, and the Minister had jurisdiction to hear the appeal over the parcel.

p. 5
03

Proof of bias by the District Commissioner and error on the face of the record

Holding

No bias was proved and no self-evident error on the face of the record was demonstrated; certiorari could not issue on these grounds.

Reasoning

The Court re-evaluated the record as a first appeal and found no bias on the part of the 2nd respondent. Citing National Bank of Kenya v Ndungu Njau, an error on the face of the record must be self-evident and not require elaborate argument. The appellant failed to illustrate any such error, and none was apparent per the dictum in Muyodi v ICDC. The record showed the appellant participated in the proceedings before the District Commissioner.

p. 5
04

Duty of the first appellate court

Holding

As a first appeal, the Court must analyze and re-assess the evidence and reach its own conclusions, while bearing in mind it neither saw nor heard the witnesses.

Reasoning

Relying on Selle v Associated Motor Boat Co and Jabane v Olenja, the Court reiterated that an appeal from the High Court is by way of retrial: the Court must reconsider and evaluate the evidence itself and draw its own conclusions, but will not lightly differ from findings of fact of a trial judge who saw and heard the witnesses, interfering only where findings are based on no evidence or on wrong principles.

p. 4

Legal principles established

#
  • A person who is not the registered proprietor and is not the duly authorized representative of the registered proprietor has no locus standi to initiate judicial review proceedings in relation to the suit property.
  • Where an appeal to the Minister is pending under the Land Adjudication Act, the Registrar has no jurisdiction to issue a title deed, and any registration issued while the appeal is pending is null and void.
  • Certiorari is not a remedy for settling ownership disputes or conferring title to land.
  • An error on the face of the record, for purposes of certiorari, must be self-evident and should not require elaborate argument to establish.

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.Costs awarded to the 3rd respondent

Authorities

#

Legislation

  • Land Adjudication Act (Cap 284, Laws of Kenya)Section 28
  • Land Adjudication Act (Cap 284, Laws of Kenya)Sections 27 and 28
  • Registered Land ActSection 143(1)
  • Civil Procedure Act (Cap 21, Laws of Kenya)General proceedings
  • Civil Procedure RulesOrder 53
  • Registration of Documents Act (Cap 285, Laws of Kenya)Registration of powers of attorney

Cases cited (9)

  • Selle -vs- Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
  • Jabane – vs- Olenja
    [1986] KLR 661
  • Ephantus Mwangi -vs- Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278
  • Mwanasokoni vs. Kenya Bus Services
    (1982-88) 1 KAR 870
  • Timotheo Mathenge – v- Manunga Ngochi
    Civil Appeal No. 25 of 1978
  • R – v- Lancashire County Council Ex p Gayer
    (1980) 1 WLR 1024
  • National Bank of Kenya Limited v. Ndungu Njau
    Civil Appeal No. 211 of 1996 (unreported)
  • Muyodi v Industrial & Commercial Development Corporation & Anor.
    (2006) 1 EA 243
On appeal from
High Court of Kenya at Embu
Judicial Review No. 57 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act (Cap 21) arising from a High Court judicial review ruling

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (19)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Euton Njuki Makungo v Republic & 2 others [2014] KECA 445 (KLR)", Case Analysis (2014). Civil Appeal No. 35 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/445/eng@2014-07-22

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