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ELCAllowedNot stated in the judgment· [2018] KEELC 1503 (KLR)

Ole Kisira Simon v Sankei Samwel Tasur [2018] KEELC 1503 (KLR)

Environment and Land Court
28 September 2018
MKMohammed Noor Kullow
662 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's title cannot be revoked without being heard, so the court sent this boundary dispute to a full hearing.

What this practically means

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Executive summary

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Before the Environment and Land Court at Narok was a Notice of Motion dated 14th July, 2017 brought under Order 46 Rule 16 and Order 51 Rule 1 of the Civil Procedure Rules, seeking to set aside an arbitral award made on 25th April, 2016 and to have the suit heard. The dispute concerned the boundaries and delineation of parcels Trans Mara/Shartuka/178 and Trans Mara/Shartuka/970. Earlier, on 24th October, 2016, the court had referred the dispute to the Trans Mara Land Adjudication Officer and Land Registrar for investigation, site inspection and a report. Their report observed that a sub-division creating parcels Trans Mara/Shartuka/907 and 1700 had been cancelled in Misc. Civil Case No. 52 of 2009, and that parcel 907 did not exist on the ground. The Applicant argued that his title to Trans Mara/Shartuka/970 was never mentioned in the High Court Misc. Application No. 52 of 2009, that no notice or demand for return of the title was made to him, that the report was unsigned, and that the arbitrator failed to use genuine documents and was impartial. The Respondent opposed via grounds of opposition, contending that the court lacked jurisdiction on the face of a consent order, that there was no arbitral award capable of being set aside, and that the Applicant, whose title had been revoked, lacked locus standi. The court framed the issue as whether to adopt or reject the registrar's report. It found that the Applicant was not a party to the proceedings said to have revoked his title, and that revoking his title without an opportunity to be heard would cause an injustice. Holding that numerous issues could only be resolved at a full hearing, and that land disputes are highly emotive, the court allowed the application, ordered the suit to proceed to full hearing, and made no order as to costs, directing costs in the cause.

Key legal issues

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01

Whether the applicant's title could stand as revoked pursuant to proceedings in which he was not a party

Holding

The court found that revoking the applicant's title without according him an opportunity to be heard would cause an injustice, justifying a full hearing.

Reasoning

The court examined the ruling in Miscellaneous Civil Application No. 11 of 2009 (also referenced as 52 of 2009) said to have revoked the applicant's title and found the applicant was not a party to those proceedings. Revocation of title without notice or a hearing would cause injustice. Because the dispute involved land and raised multiple contested issues, both parties should be allowed to call witnesses and produce the report at a full hearing.

p. 1
02

Whether the report by the Land Adjudication Officer and Registrar should be adopted or rejected

Holding

The court did not finally adopt or reject the report; instead, noting contested issues requiring witness testimony, it directed the suit to proceed to full hearing where the report could be produced.

Reasoning

The report was filed pursuant to a prior court order requiring investigation and site inspection of the suit parcels. The applicant challenged the revocation of his title and the arbitrator's impartiality. The court found numerous issues raised by both sides that could only be resolved at a full hearing, given that land disputes are highly emotive, and left the report to be dealt with at that stage.

p. 1

Legal principles established

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  • A party's title cannot be revoked without according that party an opportunity to be heard.

Court orders

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  1. 1.The application dated 14th July, 2017 is allowed
  2. 2.The suit herein shall proceed to full hearing
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 46 Rule 16
  • Civil Procedure RulesOrder 51 Rule 1
Jurisdiction invoked
Order 46 Rule 16 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Ole Kisira Simon v Sankei Samwel Tasur [2018] KEELC 1503 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1503/eng@2018-09-28

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