Boniface Kaguo Mwangi & another v District Lands Registrar Murang’a [2018] KEELC 1484 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed an attempt to cancel land titles without hearing the registered owners, confirming everyone affected by a title cancellation must be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court had jurisdiction to entertain the review application
The Court had jurisdiction since the dispute concerns title to land; Article 165(6)/(2) does not oust it.
The subject matter is title to land. Section 13 of the Environment and Land Court Act confers jurisdiction on the Court under Article 162(2)(b) to determine all disputes relating to land, including title, tenure and administration. The Respondent's reliance on Article 165(2) was not explained. Additionally, Order 45 Rule 2 does not require the same judge who made the order to hear a review alleging error apparent on the face of the record, and Rule 2(2) permits another judge attached to the court to hear it.
Whether the joinder and service orders were reviewable as an error apparent on the face of the record
No; the orders were correctly made because the interested party is the registered owner whose title would be affected, and the Applicants proved neither death of the interested party nor efforts to trace or substitute him.
The register shows the suit lands registered to William Macharia Kanoo and Fort Hall/Gitugi/1163 to Thaka Muturi. Any cancellation or reversal of titles would affect them, so natural justice demands they be heard. The Applicants produced no documents proving death, showed no effort at service, and did not attempt substitution. The grievance therefore goes to the substance of the suit, not to any error on the face of the record.
Whether Thaka Muturi should be enjoined
Yes; the Court directed the Applicants to enjoin Thaka Muturi and serve him within 14 days.
Perusal of the register disclosed that Fort Hall/Gitugi/1163 is registered to Thaka Muturi, not to William Macharia Kanoo. Since final orders in the suit would affect him as registered owner, he must be joined and served with the pleadings before any orders are made.
Legal principles established
#- An application for review alleging error apparent on the face of the record need not be heard by the judge who made the order; another judge attached to the court may hear it under Order 45 Rule 2(2).
- The Environment and Land Court has jurisdiction over disputes relating to title to land under Section 13 of the Environment and Land Court Act and Article 162(2)(b).
- A registered owner whose title will be affected by cancellation or reversal of titles must be joined and heard before such orders are made.
Court orders
#- 1.The application is dismissed with costs
- 2.The Applicant be and is hereby directed to enjoin Thaka Muturi and serve him with pleadings within 14 days of this ruling
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution read with Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boniface Kaguo Mwangi & another v District Lands Registrar Murang’a [2018] KEELC 1484 (KLR)", Case Analysis (2018). Notice of Motion dated 26/4/17 (ELC Judicial Review Misc. Application, Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1484/eng@2018-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.