Charles Muriuki Muchira v Benson Mithamo Kamuku & another [2016] KEELC 1057 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the failure to annex the order sought to be set aside renders the application fatally defective
The application is not defective because it is one for setting aside, not review; Order 45 requirements do not apply
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.
Whether there was inordinate delay in bringing the application
Delay could not be assessed because there was no evidence of when the applicant learnt of or was served with the impugned orders
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.
Whether the application was overtaken by events (sub-division and transfer of the suit land)
No; sub-division and transfer cannot bar the court from revoking irregularly or unlawfully effected transfers
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.
Whether the applicant made out a case for joinder and setting aside of the orders
Yes; the respondents conspired to defeat the applicant's interest, he has sufficient interest, and he should be enjoined as an interested party
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.
Legal principles established
#- 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
#- 1.The applicant is enjoined in the suit as an interested party
- 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.The application is allowed as prayed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.