Newton Kabui Muruhi & 3 others v Leah Wambui Karenge & another [2017] KEELC 697 (KLR)

Environment and Land Court

7 December 2017

EOE.O. Obaga

1,820 words in judgment

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The bottom line

What this practically means

Executive summary

This ruling by the Environment and Land Court at Nairobi (E.O. Obaga, J) disposed of an application in a land dispute filed on 20th August 1975 by Wanjiku Muruhi against Ruge Karenge over five registered properties, which the plaintiffs claimed had been jointly purchased by their father and the defendant's grandfather and registered in the defendant's name in trust for the two families. The dispute was referred to arbitration before the District Officer, Limuru, whose award was adopted as judgment on 22nd October 1984 by Justice O'kubasu. Decades of subsequent applications failed, largely due to the applicant's advocates, and Justice Mbogholi Msagha barred further applications without leave. The applicant sought leave plus substantive orders: approval of a decree sharing LR Nhecha/Mbari-ya-igi/25 equally between the two households and allocating the six Limuru town plots, and an order directing the Land Registrar Kiambu to remove cautions registered by Hannah Wanjiku on two properties. The court granted leave to bring the application, finding the past failures were not the applicant's own making, but refused the substantive relief: granting the decree would amend the District Officer's award or circumvent Justice Osiemo's unappealed orders refusing reinstatement of the application dated 15th October 2007; and the cautions could be removed by the administrators of the cautioner's estate writing to the Registrar. The application was dismissed with costs to the respondents.

Key legal issues

Whether leave to file further applications should be granted

Holding

Leave was granted because the past failures were not the applicant's own making

Reasoning

The court traced the decades-long delay to the applicant's advocates, who failed to attend court and filed applications seeking to review orders already set aside, and to the lack of clarity in the adopted award. Because the delay and repeated dismissals were attributable to counsel rather than the applicant personally, the court was willing to allow the applicant to bring this application despite the prior bar.

p. 3

Whether the substantive orders for extraction of a decree over the suit properties could be granted

Holding

Refused; granting them would amend the District Officer's award and go around Justice Osiemo's unappealed orders

Reasoning

The orders of 24th April 2002 directing the District Officer to identify specific plots had been set aside, and the applicant's application seeking reinstatement had been dismissed by Justice Osiemo on 8th October 2008 with no appeal preferred. Approving the decree as prayed would therefore amount to amending the award or circumventing that dismissal order.

p. 4

Whether the court should order removal of cautions on the two properties

Holding

Refused as unnecessary; the administrators of the cautioner's estate can request the Registrar to remove them

Reasoning

The cautions had been placed by the applicants' mother, and as administrators of her estate the applicants may simply write to the Registrar requesting removal, which is one recognized mode of removing a caution. A court order was therefore inappropriate where the parties themselves could move the Registrar.

p. 4

Legal principles established

A court cannot grant orders that would amount to amending an adopted arbitral award or circumventing an unappealed court order
A caution may be removed by the cautioner (or their estate administrators) writing to the Registrar, which is a mode of removal the court should prefer where available

Court orders

1.Leave granted to bring the application, but the application itself dismissed
2.The applicants' application dismissed with costs to the respondents

Jurisdiction invoked: Original civil suit (land dispute) in which an arbitral award by the District Officer, Limuru was adopted as judgment of the court; the application arises out of that suit

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Newton Kabui Muruhi & 3 others v Leah Wambui Karenge & another [2017] KEELC 697 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/697/eng@2017-12-07

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