Daniel Kahara Wakigo v John Kiumbuku Chege & 4 others

The court applied the settled principles in Mbogo v Shah and United India Insurance, which confine appellate interference with discretionary decisions to established errors of law, misapprehension of fact, or plainly wrong decisions. The trial court had based its 2016 ruling on the existence of a judgment that was in fact set aside by consent on 2nd December 1996, and the appellant and Public Trustee had concealed this. There was therefore no basis for interference.

The appellant argued that only the Environment and Land Court could nullify registered titles. The Court held that the property comprised the estate of a deceased person, and as a probate court the trial judge had discretion under rule 73, which preserves the inherent power of the court to make orders necessary for the ends of justice or to prevent abuse of process, to cancel the unlawfully obtained titles.

The appellant claimed the property was sold to him by the widow, Salome Wangui Chege, who was not the administrator; and the transfer by the Public Trustee was not pursuant to a confirmed grant but in enforcement of a decree in a judgment that had been set aside years earlier, a fact known to both the appellant and the Public Trustee. The section therefore did not apply to either transaction.

The appellant argued the trial court's ruling pre-empted a pending appeal challenging the refusal to reinstate CMCCC No. 1795 of 1995. The Court held that even assuming the appeal was live, the titles issued pursuant to a set-aside judgment had no legal basis and could not remain on the register given the danger of third-party transactions complicating the matter further.