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ELCDismissedNot stated in judgment (suit filed 13/08/2013 at the Environment and Land Court, Chuka)· [2018] KEELC 461 (KLR)

Mutiria Karumbai Macaw v James Njagi Makembo & 3 others [2018] KEELC 461 (KLR)

Environment and Land Court of Kenya
19 December 2018
PNP. M. Njoroge
16,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~66 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a landowner's claim, confirming that withdrawing a court challenge to a minister's land decision makes that decision final.

What this practically means

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Executive summary

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The plaintiff sued the 1st defendant, the County Commissioner, the Chief Land Registrar and the Attorney General seeking declarations that the minister's (District Commissioner's) decision in adjudication Appeal No. 155 of 2004 over Land Parcel No. Rukurini/133 was a nullity, that he was the rightful owner of the parcel as first registered proprietor, an order reinstating his name on the register after its cancellation and substitution with the 1st defendant's name, and a permanent injunction against the 1st defendant. The 1st defendant denied the claim and counterclaimed for a permanent injunction restraining the plaintiff, alleging the minister's final decision confirmed his ownership. The court framed two issues: which party proved his case on a balance of probabilities, and who should bear costs. The court held that the plaintiff had submitted himself to the Land Adjudication Act dispute-resolution process culminating in the minister's decision, and had withdrawn his judicial review challenge (Meru HCJR No. 71 of 2005), leaving that decision valid and unchallenged; there was therefore no legal bar to the 1st defendant's registration. It found no irregularity in the proceedings before the minister and held that the pleaded particulars of fraud, including the placing and lifting of the restriction and the alteration of the register, were not proved to the heightened standard required for fraud. The plaintiff's suit was dismissed; the 1st defendant's counter-claim was allowed with a permanent injunction against the plaintiff and alleged purchasers; costs were awarded to the 1st defendant only. Judgment was delivered at Chuka on 19th December 2018 by P. M. Njoroge, J.

Key legal issues

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01

Whether the registration of the 1st defendant as proprietor of the suit land during the pendency of the suit was fraudulent or irregular

Holding

The court held the change of ownership was done procedurally after the plaintiff withdrew his judicial review proceedings challenging the minister's decision, and no fraud was proved.

Reasoning

The court found the plaintiff had withdrawn Meru High Court JR No. 71 of 2005, leaving the minister's decision valid and unchallenged. The restriction placed by the Chief Land Registrar was lawful and its removal followed the minister's determination. The court examined each pleaded particular of fraud and found none proved, applying the higher standard of proof required for fraud allegations.

p. 24
02

Whether the District Commissioner's (minister's delegate) appeal proceedings were irregular for failing to visit the suit land

Holding

The court found no irregularity in the proceedings before the minister, holding they formed a good basis for the decision.

Reasoning

The court perused the proceedings escalated to the minister's appeal and found them not perfunctory. It noted the institutions established under the Land Adjudication Act are better placed to ascertain ancestral and community rights, and that the plaintiff had subjected himself to those processes and to judicial review which he withdrew.

p. 24
03

Whether the court should make the declaratory orders sought by the plaintiff

Holding

The court declined to grant declaratory orders, holding the court had the power but was not persuaded the circumstances warranted them.

Reasoning

Although the court acknowledged it has power to make declaratory orders in proper circumstances, it found the plaintiff had not proved irregularities. The court also noted the plaintiff's prior judicial review challenge had been withdrawn, leaving the minister's final decision intact, and that no cogent evidence supported the plaintiff's claims.

p. 24

Legal principles established

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  • Allegations of fraud must be proved through cogent evidence whose degree of proof must be higher than the ordinary balance of probabilities.
  • Withdrawal of judicial review proceedings challenging a minister's adjudication appeal decision leaves that decision valid, unchallenged and final, and there is no legal bar to its implementation by registration.
  • Tribunals and quasi-judicial bodies cannot be said to have participated in a fraudulent enterprise by merely making their decisions.

Court orders

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  1. 1.The plaintiff's suit is hereby dismissed.
  2. 2.The 1st defendant's counter-claim is allowed and a permanent injunction is issued restraining the plaintiff, his agents, servants or representatives or whomsoever acting on his behalf, including alleged purchasers of portions of the suit land, from entering, trespassing, occupying or in any manner whatsoever interfering with the 1st defendant's use and occupation of L.R. No. RUKURINI/133.
  3. 3.Costs to follow the event and are awarded to the 1st defendant ONLY.

Authorities

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Legislation

  • The Constitution of Kenya, 2010Article 40(2); Article 2(4); Article 162(2)(b); Article 159(1); Article 50(1); Article 27(4)
  • Land Adjudication Act, Cap 284Section 29(1)(a), (b), (2), (3)(a) & (b); Section 29(4); Section 26; Section 30(1)
  • Environment and Land Court Act, No. 19 of 2011Section 13(1), 13(2)(e), 13(7)(g), (h) and (i)
  • Land Registration Act, No. 3 of 2012Section 80(1); Section 77(1)
  • Civil Procedure Rules, 2010Order 3 Rule 9; Order 2 Rule 10(1); Order 11; Order 53
  • Law Reform ActSection 8

Cases cited (8)

  • Methodist Church in Kenya Trustee Registered v The Attorney General & 6 Others
    Meru High Court Petition No. 4 of 2010
  • Mutsonga v Nyati
    [1984] KLR 426
  • Ngige v Chomba & 3 Others
    [2004] 1 KLR
  • Evans Otieno Nyakwana v Cleophas Bwana Ongaro
    [2015] eKLR, Homa Bay High Court Civil Appeal No. 7 of 2014
  • Central Kenya Ltd v Trust Bank Ltd & 4 Others
    Nairobi C.A. No. 215 of 1996, [1996] eKLR
  • Richard Oduol Opole v The Commissioner of Lands & Another
    Kisumu C.A. No. 285 of 2007, [2015] eKLR
  • Ratilal Gordhanbhai Patel v Lalji Makanyi
    [1957] EA 314
  • Gudka v Dodhia
    Civil Appeal No. 21 of 1980
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011; jurisdiction admitted by the 1st defendant

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mutiria Karumbai Macaw v James Njagi Makembo & 3 others [2018] KEELC 461 (KLR)", Case Analysis (2018). Not stated in judgment (suit filed 13/08/2013 at the Environment and Land Court, Chuka). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/461/eng@2018-12-19

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