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ELCAllowedJudicial Review Application (Notice of Motion dated 5/5/2016)· [2017] KEELC 2225 (KLR)

Republic v Butula Land Disputes Tribunal & Alexander Okello Okaya [2017] KEELC 2225 (KLR)

High Court of Kenya
19 July 2017
AKA. K. Kaniaru
901 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 can force you to return land even after you subdivide it—changing parcel numbers does not defeat a court order.

What this practically means

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Executive summary

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The Exparte Applicant, Peter Ojwang Tsimbiko, moved the court by Notice of Motion dated 5/5/2016 under Sections 1A, 1B, 3A, 3B and 38 of the Civil Procedure Act and Order 22 Rule 29 and Order 51 of the Civil Procedure Rules, seeking enforcement of a decree against the Interested Party, Alexander Okello Okaya, over land formerly comprised in parcel MARACHI/ESIKOMA/1631. The dispute had earlier gone before the defunct Butula Land Disputes Tribunal, whose decision, adopted as judgment of the lower court in Land Dispute No. 48 of 2008, awarded the land to the Interested Party. The Exparte Applicant challenged that outcome in judicial review, but the matter was compromised by a consent order dated 26/1/2012 granting certiorari and quashing the tribunal and court decisions, thereby restoring the status quo in which the Exparte Applicant owned parcel No. 1631. The Interested Party, however, surreptitiously implemented the quashed tribunal decision: he reverted the land to the original parcel No. 320 and subdivided it into parcels 2211, 2212 and 2213, retaining parcel 2211 and transferring the others to third parties. The court held that this was a deliberate attempt to change the identity of the land and defeat the Exparte Applicant's interest, and that the applicant's interest must be deemed to be in parcel No. 2211. Finding the application unopposed and meritorious, the court granted prayers 1, 2 and 3, compelling restoration, excision, transfer and registration of 0.52Ha to the Exparte Applicant at the Interested Party's cost, with execution by the court's executive officer if necessary. Costs were awarded in the cause.

Key legal issues

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Enforcement of a decree/consent order where the judgment debtor has subdivided and re-registered the land to defeat execution

Holding

The court granted the application, compelling the Interested Party to excise 0.52Ha from parcel No. MARACHI/ESIKOMA/2211 and transfer it to the Exparte Applicant at the Interested Party's cost.

Reasoning

The consent order of 26/1/2012 quashed the tribunal decision adopted by the lower court, restoring the status quo whereby the Exparte Applicant owned parcel No. 1631. The Interested Party nonetheless secretly effected the quashed tribunal order, reverting the land to parcel No. 320 and subdividing it into parcels 2211, 2212 and 2213, retaining 2211. The court held this was an attempt to defeat the Exparte Applicant's interest, so his interest must be deemed to lie in parcel 2211, and the decreed restoration was ordered.

p. 2

Legal principles established

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  • A party cannot defeat a decree or consent order by changing the identity of the land through sub-division; the applicant's interest must be deemed to exist in the resultant parcel occupied by the defaulting party.

Court orders

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  1. 1.Prayer 1 granted: the Interested Party is compelled to restore to the Exparte Applicant a portion of land measuring 0.52Ha now comprised in title No. MARACHI/ESIKOMA/2211 so as to give effect to the decree
  2. 2.Prayer 2 granted: the Interested Party to meet the consequential cost of sub-dividing his title No. MARACHI/ESIKOMA/2211, excising therefrom a portion measuring 0.52Ha and transferring and registering it in the Exparte Applicant's name
  3. 3.Prayer 3 granted: the Interested Party to execute all necessary documents, in default of which the executive officer or any authorized officer of the Court to execute the same on his behalf
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 3B and 38
  • Civil Procedure Rules, 2010Order 22 Rule 29; Order 51
Jurisdiction invoked
Sections 1A, 1B, 3A, 3B and 38 of the Civil Procedure Act (Cap 21) and Order 22 Rule 29 and Order 51 of the Civil Procedure Rules, 2010, in exercise of supervisory/executory jurisdiction following a consent order of certiorari

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, "Republic v Butula Land Disputes Tribunal & Alexander Okello Okaya [2017] KEELC 2225 (KLR)", Case Analysis (2017). Judicial Review Application (Notice of Motion dated 5/5/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2225/eng@2017-07-19

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