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ELCPartially AllowedNot stated in judgment· [2017] KEELC 1247 (KLR)

Lucy Muthoni & 2 others v Philip Mbithi Kavisu & another [2017] KEELC 1247 (KLR)

Environment and Land Court
5 October 2017
OAO. A. Angote
1,166 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out orders won through a forged affidavit of service, confirming the Environment and Land Court—not the National Land Commission—decides land title disputes.

What this practically means

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Executive summary

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The Defendants filed an application dated 3rd February 2017 seeking: (a) striking out of an Affidavit of Service allegedly sworn by Kyalo Makau on 31st May 2016 for containing false matter; (b) setting aside orders issued on 2nd June 2016 by Hon. Justice Okong'o on the ground of non-service; and (c) referral of the proprietorship dispute over L.R. No. 12197/8 to the National Land Commission. The Defendants deponed that they only learnt of the matter on 16th October 2016 when eviction was attempted, and that they were never served. The process-server himself swore an affidavit denying that he served the Defendants or signed the affidavit filed in court, calling it a forgery. The Plaintiffs opposed, arguing that the National Land Commission cannot oust the court's jurisdiction and that the Defendants had no legal or beneficial interest in the suit land, and that they had since been evicted. The court found that, the process-server having denied service, the Affidavit of Service was a forgery and ordered it expunged. Because the court had been misled into granting the orders of 2nd June 2016, those orders and all subsequent orders were set aside ex debito justitiae. However, the court declined the prayer for referral to the National Land Commission, holding that under Article 162(2)(a) of the Constitution and Section 13(1) of the Environment and Land Act it is the Environment and Land Court that has mandate over disputes on title to land, and the Defendants pointed to no legal provision requiring referral. The Application was allowed in terms of prayers 4, 5 and 9.

Key legal issues

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01

Validity of the Affidavit of Service

Holding

The Affidavit of Service filed on 2nd June 2016 is a forgery and was expunged from the record

Reasoning

The process-server, Kyalo Makau, swore an affidavit denying that he served the Defendants or signed the affidavit filed in court. Having denied service, the court found the affidavit of service to be a forgery and ordered its expungement.

p. 3
02

Setting aside ex parte orders obtained on false service

Holding

Orders of 2nd June 2016 and any subsequent orders were set aside ex debito justitiae because the court was misled into believing that the Defendants had been served

Reasoning

Since the orders of 2nd June 2016 were granted on the strength of a forged affidavit of service, the court was misled. Orders obtained through such misrepresentation are set aside as of right, ex debito justitiae, together with any subsequent orders flowing from them.

p. 3
03

Referral of land proprietorship dispute to the National Land Commission

Holding

The prayer for referral to the National Land Commission was declined as the Environment and Land Court has the mandate to determine disputes relating to title to land

Reasoning

Under Article 162(2)(a) of the Constitution and Section 13(1) of the Environment and Land Act, this court has the mandate to hear and determine disputes relating to environment and the use and occupation of, and title to land. The Defendants did not point to any legal provision requiring referral to the Commission.

p. 3

Legal principles established

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  • An Affidavit of Service that is forged or contains false matter should be expunged from the record, and orders obtained on the strength of such a false affidavit may be set aside ex debito justitiae
  • The Environment and Land Court has exclusive mandate to hear and determine disputes relating to environment and the use and occupation of, and title to land, and referral to the National Land Commission is unwarranted absent legal provision

Court orders

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  1. 1.The Affidavit of Service filed on 2nd June 2016 is a forgery and is expunged from the record
  2. 2.The orders of 2nd June 2016 and any subsequent orders are set aside ex debito justitiae
  3. 3.The Defendants' Application is allowed in terms of prayer numbers 4, 5, and 9

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 67(2)(a)
  • Constitution of Kenya, 2010Article 67(2)(e)
  • Environment and Land ActSection 13(1)
  • Civil Procedure Rules, 2010Order 19 Rules 3 and 6; Order 5 Rules 6, 7, 8, 13, 14 and 15
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 13(1) of the Environment and Land Act

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, "Lucy Muthoni & 2 others v Philip Mbithi Kavisu & another [2017] KEELC 1247 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1247/eng@2017-10-05

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