Livingstone Kunini Ntutu v County Council of Narok & 2 others [2015] KECA 778 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that parties cannot use review to escape consent judgments they freely signed, and first-registered land titles are nearly impossible to challenge.
What this practically means
#Executive summary
#Key legal issues
#Scope and jurisdiction of review of judgments
A court may not review a consent judgment on grounds of alleged unconstitutionality or illegality of the underlying registration; such grounds are grounds of appeal, not review.
The review jurisdiction is donated by section 80 of the Civil Procedure Act and operationalised by Order 45. Allegations of unconstitutionality and illegality were within the 1st respondent's knowledge and had been litigated and dismissed by Khamoni, J. in judicial review proceedings. They are issues of law addressable only on appeal, so the review judge erred by extending the court's jurisdiction.
Res judicata and estoppel arising from a consent judgment
The consent judgment rendered the matters in controversy res judicata and the 1st respondent was estopped from reneging on its own freely negotiated consent.
The Court held that in review it does not matter that a judgment was by consent rather than after trial. The 1st respondent initiated the settlement, opposed the 2nd respondent's attempt to quash the consent before Khamoni, J., then sought to resile - approbating and reprobating, which the law frowns upon.
Whether the decree of 24th November 2005 was fatally defective
The decree was not defective merely for bearing different dates or referring to two consents and a discontinuance; such recitals reflect real procedural events.
Order 21 rule 7 requires a decree to agree with the judgment and to record events occurring on different dates. Two consents had been recorded and one party had discontinued, so the decree properly reflected these. The judge relied on a ground not pleaded, denying the appellant a chance to respond.
Defeasibility of the appellant's first-registration title
A first registration under section 143(1) of the repealed Registered Land Act is indefeasible even against fraud or mistake; the review judge erred in failing to give effect to that provision.
Section 143(1) excludes first registrations from rectification for fraud or mistake; the only remedy for a person suffering damage is an indemnity claim against the Government under section 144(1). The property, registered in the appellant's name, ceased to be trust land under section 116 of the repealed Constitution.
Legal principles established
#- Grounds of unconstitutionality or illegality are issues of law addressable only through appeal, not review; a review court cannot extend its jurisdiction by treating them as 'sufficient reason'.
- Matters in controversy in a suit become res judicata upon entry of a consent judgment, and a party who freely negotiated such a consent is estopped from reneging on it.
- A decree is not fatally defective merely because it bears different dates reflecting different procedural events.
- A first registration under section 143(1) of the repealed Registered Land Act is indefeasible and cannot be rectified even on proof of fraud or mistake.
Court orders
#- 1.The appeal is allowed
- 2.The ruling delivered by the review court on 19th March, 2014 is set aside
- 3.An order dismissing the Notice of Motion dated 12th March, 2009 is substituted
- 4.The decree dated 24th November, 2005 is upheld
- 5.The 1st respondent to bear the appellant's costs of this appeal and the costs in the High Court
- 6.No costs awarded to the 2nd and 3rd respondents
- On appeal from
- High Court of Kenya at Nairobi
- ELC No. 1565 of 2000
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (ruling of Nyamweya, J.) under the Court of Appeal's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Livingstone Kunini Ntutu v County Council of Narok & 2 others [2015] KECA 778 (KLR)", Case Analysis (2015). Civil Appeal No. 109 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/778/eng@2015-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.