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ELCPartially Allowed· [2018] KEELC 447 (KLR)

Naomi Chepchumba Ongira v Kibor Arap Busienei [2018] KEELC 447 (KLR)

Environment and Land Court
19 December 2018
AOA. Ombwayo
392 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court ruled you cannot sue to reverse a land transaction without joining the Registrar, Surveyor and Attorney General as parties.

What this practically means

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Executive summary

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This was an interlocutory application dated 14th August 2017 in a land suit before the Environment and Land Court at Eldoret, in which the plaintiff sought leave to enjoin the Nandi County Land Registrar and Nandi County Surveyor as 2nd and 3rd defendants and leave to amend the plaint. The underlying suit challenged the subdivision of land parcel NANDI/KIPSIGAK/690 into parcels 1192 and 1193, the transfer and registration of those parcels in the defendant's name, and their consolidation into parcel NANDI/KIPSIGAK/1320, with the objective of reverting ownership to the plaintiff. The plaintiff argued that statutory powers over subdivision, transfer and consolidation are vested in the County Land Registrar and County Surveyor, that the suit impugns their actions, and that they cannot be condemned unheard; the omission was said to be an inadvertent mistake. The defendant, through the replying affidavit of Elijah Momanyi Mogona, opposed the joinder as superfluous, contending the court could determine the dispute without the proposed defendants. The court allowed the application, holding that the allegations of fraud made it necessary to enjoin the Attorney General on behalf of the defendants. It ordered the County Land Registrar, County Surveyor and Honourable Attorney General to be enjoined as 2nd, 3rd and 4th defendants respectively, and directed that the plaint be amended accordingly. The judgment, delivered by A. Ombwayo J on 19th December 2018, made no costs order.

Key legal issues

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01

Whether the County Land Registrar and County Surveyor are necessary and proper parties to a suit challenging subdivision, transfer, registration and consolidation of land parcels

Holding

The court found them necessary because the suit seeks to impugn their actions and any reversion of ownership would affect the exercise of their statutory powers

Reasoning

The suit challenged the subdivision of NANDI/KIPSIGAK/690 and the transfer and registration of the resulting parcels, plus consolidation into NANDI/KIPSIGAK/1320. Statutory powers over subdivision, transfer and consolidation are vested in the County Land Registrar and County Surveyor, and the objective of reverting ownership to the plaintiff would affect the exercise of those powers. Fair determination required their participation.

p. 2
02

Whether the Attorney General should be enjoined given allegations of fraud

Holding

Because the suit contains allegations of fraud against public officers, the Attorney General was joined on behalf of the defendants

Reasoning

The court found fraud alleged against the defendants, which made it necessary to enjoin the Attorney General on their behalf in addition to the two officers named in the application, resulting in joinder of a 4th defendant not sought by the plaintiff.

p. 2

Legal principles established

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  • Where a suit alleges fraud and seeks to impugn actions of the Land Registrar and Surveyor and to revert ownership of land, those officers are necessary parties who cannot be condemned without being heard

Court orders

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  1. 1.The County Land Registrar, County Surveyor and Honourable Attorney General to be enjoined as the 2nd, 3rd and 4th defendants respectively
  2. 2.The plaint to be amended accordingly

Authorities

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Legislation

  • Land Registration Actnot specified
Jurisdiction invoked
Original civil jurisdiction over land disputes; provisions invoked by parties include the Land Registration Act vesting powers of subdivision, transfer and consolidation of land in the County Land Registrar and County Surveyor

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, "Naomi Chepchumba Ongira v Kibor Arap Busienei [2018] KEELC 447 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/447/eng@2018-12-19

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