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ELCAllowedNot stated in judgment· [2016] KEELC 1057 (KLR)

Charles Muriuki Muchira v Benson Mithamo Kamuku & another [2016] KEELC 1057 (KLR)

High Court of Kenya
18 February 2016
2,403 words in judgment
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The bottom line

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A Kenyan court set aside eviction orders made without a landowner's knowledge, ruling that fraudulently obtained land transfers can be revoked even after sale.

What this practically means

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Executive summary

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This was an application dated 29th July 2009 by Benedict Nyaga Migwi seeking to be enjoined in an ongoing land suit as an interested party and to set aside a judgment and subsequent orders, notably an order of 24th October 2002 that removed a restriction over land parcel Mutira/Kianjege/530 and directed his eviction. The applicant contended that the suit between the plaintiff and the defendant had been filed and concluded without his knowledge, despite his occupation of the land and a prior suit, Kerugoya PMCC No. 171 of 1995, in which he had obtained judgment against the defendant over the same parcel, a judgment later reinstated on appeal. The plaintiff opposed, arguing the application was fatally defective for failure to annex the order sought to be set aside under Order 45, that there was inordinate delay, and that the application was overtaken by events since the property had been sub-divided and transferred. The court framed four issues and held that the application was not one for review but for setting aside orders obtained without the applicant's knowledge, so the review requirements did not apply. Delay could not be established absent evidence of when the applicant learnt of the orders. Sub-division and transfer could not bar relief since irregular transfers may be revoked. On the merits, the court found the plaintiff and defendant had conspired to defeat the applicant's interest, creating two contradictory decrees over the same land. The application was allowed as prayed, enjoining the applicant as an interested party and setting aside the impugned orders.

Key legal issues

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01

Whether the failure to annex the order sought to be set aside renders the application fatally defective

Holding

The application is not defective because it is one for setting aside, not review; Order 45 requirements do not apply

Reasoning

The respondent relied on Order 45 review requirements, arguing the application was defective for want of the order annexed. The court held that the application was for setting aside orders obtained without the applicant's knowledge, a remedy governed by different principles from review, and authorities confirm the court's wide discretion to set aside judgments on just terms. Accordingly the defect alleged did not arise.

p. 3
02

Whether there was inordinate delay in bringing the application

Holding

Delay could not be assessed because there was no evidence of when the applicant learnt of or was served with the impugned orders

Reasoning

The applicant asserted he was unaware of the suit until served with the eviction orders, a fact not contested. Neither party indicated when service occurred, so the court could not find the delay so inordinate as to vitiate the applicant's right to seek the orders if the discretion was otherwise exercised in his favour.

p. 4
03

Whether the application was overtaken by events (sub-division and transfer of the suit land)

Holding

No; sub-division and transfer cannot bar the court from revoking irregularly or unlawfully effected transfers

Reasoning

The court reasoned that the mere sub-division of the property and transfer of a portion to the plaintiff and a third party cannot stop the court from granting the orders sought, because the court retains power to revoke transfers proved to have been irregularly or unlawfully effected, citing Article 40(6) of the Constitution removing protection from unlawfully acquired title.

p. 4
04

Whether the applicant made out a case for joinder and setting aside of the orders

Holding

Yes; the respondents conspired to defeat the applicant's interest, he has sufficient interest, and he should be enjoined as an interested party

Reasoning

The court found that the plaintiff and defendant entered the impugned consent orders knowing of the pending Kerugoya PMCC No. 171 of 1995, in which the applicant had obtained a judgment in his favour that was reinstated on appeal. This produced two contradictory decrees over the same land, and the defendant had no good title to pass to the plaintiff. A court of law and equity cannot countenance such fraudulent dealing.

p. 5

Legal principles established

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  • The rules on review do not apply to an application to set aside orders obtained without an affected party's knowledge; setting aside is governed by different, more liberal principles
  • The court has a wide discretion to set aside a judgment, limited only by the requirement that the variation be on just terms
  • Sub-division and transfer of suit property does not prevent the court from revoking irregularly or unlawfully effected transfers
  • A party should not benefit from his own illegal or fraudulent activities before the court

Court orders

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  1. 1.The applicant is enjoined in the suit as an interested party
  2. 2.Any judgment and subsequent orders made in the suit, including the order of 24th October 2002 removing the restriction over Mutira/Kianjege/530 and ordering the applicant's eviction, are set aside
  3. 3.The application is allowed as prayed

Authorities

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Legislation

  • Civil Procedure RulesOrder XLIV Rules 1, 2 and 3 (now Order 45 Rules 1, 2 and 3)
  • Constitution of KenyaArticle 40(6)

Cases cited (7)

  • Mea Limited v. Gatitu Coffee Growers Cooperative
    (2006) e KLR
  • Shanzu Investment Ltd v the Commissioner of Lands
    Civil Appeal No. 100 of 1993
  • Rose Wanjiku Kamau v Tabitha N. Kamau & 3 others
    (2014) eKLR
  • Patel Vs East Africa Cargo Handling Services Limited
    (1974) EA 75
  • Lochab Bros. Limited V Peter Kaluma T/A Lumumba Mumma & Kaluma Advocates & 2 others
    (2013) eKLR
  • John Nahashon Mwangi v. Kenya Finance Bank Ltd (in Liquidation)
    (2015) e KLR
  • Esther Ndegi Njiru & Another v. Leonard Gatei
    (2014) e KLR
Jurisdiction invoked
Inherent jurisdiction of the High Court to set aside orders obtained without notice to an affected party; joinder of an interested party

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charles Muriuki Muchira v Benson Mithamo Kamuku & another [2016] KEELC 1057 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1057/eng@2016-02-18

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