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ELCDismissedMiscellaneous Application dated 31st May, 2018 (Makueni ELC)· [2018] KEELC 130 (KLR)

Munywoki Kisese & 2 others v John Maswili Mulwa & 5 others [2018] KEELC 130 (KLR)

Environment and Land Court
26 November 2018
1,515 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you cannot enforce a land decree to cancel title deeds when the original tribunal never awarded that relief.

What this practically means

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Executive summary

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The Applicants moved the Environment and Land Court at Makueni by notice of motion under sections 1A, 1B and 3A of the Civil Procedure Act seeking orders compelling the Respondents to deliver original title deeds for six parcels (Nzaui/Mumbuni/210, 211, 212, 214, Nzaui/Kilili/616 and Nzaui/Mumbuni/471) to the Land Registrar Makueni to give effect to the judgment in Makueni Senior Resident Magistrate's Court LDTC 39 of 2006, and in default, that the Registrar cancel and rectify the register. The application was supported by affidavits of the first Applicant and opposed by grounds of opposition and a replying affidavit of the first Respondent, who contended that the tribunal award, adopted as judgment in LDTC 39 of 2006, only concerned boundary redrawing of parcels Nzaui/Kilili/610, 616 and 623, and that cancellation of titles is a substantive relief requiring a suit. The court held that the Land Disputes Tribunal's jurisdiction under section 3(1) of the repealed Act did not extend to cancellation of title deeds, and that the decree in LDTC 39 of 2006 provided only for the District Surveyor to redraw boundaries. The Applicants could not enforce relief never awarded. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Scope of the tribunal decree sought to be executed

Holding

The decree in LDTC 39 of 2006 only directed the District Surveyor to redraw boundaries over parcels 610, 616 and 623; it made no provision for cancellation of titles

Reasoning

The court perused the tribunal's award annexed as MK1 and the decree reproduced in submissions, and found that the tribunal dealt only with boundary demarcation of three parcels. Any rectification of title acreages was contingent upon the boundary marking, not an independent order for cancellation. Enforcing more than the decree is misconceived.

p. 3
02

Proper procedural vehicle for cancellation of title deeds

Holding

Cancellation of title deeds is a substantive relief which must be sought by suit, not by miscellaneous application

Reasoning

The court agreed with the Respondents' counsel that an application could not be used to cancel titles. Since the tribunal's jurisdiction was confined by section 3(1) of the Land Disputes Tribunal Act, and no decree for cancellation existed, the application sought to enforce that which was never awarded and was therefore misconceived and devoid of merit.

p. 3

Legal principles established

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  • A Land Disputes Tribunal's jurisdiction under section 3(1) of the Land Disputes Tribunal Act was limited to boundary disputes, claims to occupy land and trespass, and did not extend to cancellation of title deeds
  • A party may only enforce the decree as issued; they cannot enforce relief that was not awarded

Court orders

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  1. 1.The notice of motion application dated 31st May, 2018 is dismissed
  2. 2.Costs of the application awarded to the Respondents
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (inherent power of the court)

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, "Munywoki Kisese & 2 others v John Maswili Mulwa & 5 others [2018] KEELC 130 (KLR)", Case Analysis (2018). Miscellaneous Application dated 31st May, 2018 (Makueni ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/130/eng@2018-11-26

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