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ELCPartially AllowedNot stated in the judgment· [2017] KEELC 3496 (KLR)
Meshack A Mecha & another v Stephen Kiprono Chumo & 2 others [2017] KEELC 3496 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The plaintiffs sued, claiming ownership of Uns. Residential Plot No. B in Nakuru Municipality, purchased from the 1st defendant, who had been allocated the land by the Commissioner of Lands in 1999. They sought a declaration that the land belonged to them. The 1st defendant admitted selling by mistake and undertook to revert the title. On 9 September 2011 the plaintiffs and the 1st defendant entered a consent, filed on 17 October 2011, requiring the 1st defendant to transfer Nakuru Municipality Block 15/858 to the plaintiffs, providing for refunds to third parties, withdrawing the suit against the 2nd and 3rd defendants, and awarding costs to the plaintiffs; it was confirmed by order on 21 June 2012. The plaintiffs then sought the 1st defendant's committal for non-compliance. David Gitau Mbugua and Cecilia Njoki Gatehi, who claimed to have purchased the property from the 1st defendant on 9 July 2007 and were registered as proprietors on 31 January 2013, applied to be enjoined as 4th and 5th defendants and to set aside the consent. The 1st defendant died and was substituted by his estate's administrators, who did not oppose. The court held that the 1st defendant could not comply with the consent as he had already transferred the land; the applicants' title could not be cancelled without first being heard, which required their joinder as parties. The consent and all consequential orders were set aside. The plaintiffs were directed to amend the plaint to clarify whether Block 15/838 is the same as Plot B, to enjoin the two applicants as defendants, and to file and serve the amended plaint within 30 days, failing which the original plaint risked being struck out. Each party was to bear their own costs.
Key legal issues
#01
Validity of a consent order entered into without the involvement of the registered proprietors of the suit land
Holding
The consent was set aside because the applicants, who were registered owners, were not parties to the suit and could not be bound or dispossessed without being heard.
Reasoning
The consent required the 1st defendant to transfer Nakuru Municipality Block 15/858 to the plaintiffs, yet the applicants had been registered as proprietors on 31 January 2013, making compliance impossible. Cancellation of the applicants' title could not occur without affording them a hearing, which required their joinder and the setting aside of the consent. The court declined to find the consent fraudulent but held the plaintiffs could not obtain the relief sought without the applicants' involvement.
p. 2
Legal principles established
#- A person's registered title cannot be cancelled without that person first being heard; they must be enjoined as parties before a consent disposing of their land can stand.
Court orders
#- 1.The consent order dated 17 October 2011 and all other consequential orders are set aside
- 2.Plaintiffs directed to amend their plaint to reflect the position if Nakuru Municipality Block 15/838 is the same as Uns. Residential Plot B
- 3.Plaintiffs directed to amend the plaint to include the two applicants as defendants and consider what prayers to seek
- 4.Amended plaint to be filed and served within 30 days, failing which the original plaint is at risk of being struck out
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a land dispute (inherent power to set aside consent orders and direct joinder)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Meshack A Mecha & another v Stephen Kiprono Chumo & 2 others [2017] KEELC 3496 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3496/eng@2017-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.