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ELCAllowedOriginating Summons dated 2nd July 2004 (Mombasa); judgment reviewed in connection with ELC Case No. 166 of 2015· [2018] KEELC 2498 (KLR)

Jumaa Chengo Kashasha & another v Registrar of Titles Mombasa & 5 others [2018] KEELC 2498 (KLR)

Environment and Land Court
5 July 2018
AOA. Omollo
3,539 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a 2012 Mtwapa land judgment, confirming that even outsiders affected by a court order can apply for review with no six-month deadline.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (A. Omollo, J) dealt with three applications seeking to set aside the judgment of Muriithi J delivered on 30th March 2012 in an Originating Summons filed by Jumaa Chengo Kashasha, who sought registration of Plot Nos. 324 and 334 MN/KILIFI/MTWAPA in his name and a declaration of exclusive ownership. The trial court had dismissed the summons but held the plots to be Government land under Article 62 of the Constitution, held on trust for the applicant and other residents. Following substitution of the deceased applicant by Omar Salim Chengo and a consent order of 26th November 2013 for reconstruction of the parcel files, three third parties - Agricultural Handling Services Ltd, Mtwapa Holdings Limited and Weisbaden Dream Villas Limited - applied to be joined as interested parties and for the judgment, decree and consequential orders to be set aside. They argued the plots no longer existed, having been surrendered to the Government, amalgamated and subdivided into parcels they now own, and that the suit had been brought against deceased persons. The respondents opposed on the grounds of lack of locus standi, failure to meet the review threshold, delay beyond six months, and that the court was functus officio. The court held that section 80 of the Civil Procedure Act confers locus on any aggrieved person, that sufficient cause existed for review because the suit was instituted against deceased parties and the consent order concerned non-existent titles risking double allocation, and that no six-month limitation applies to review applications. The court set aside the 2012 judgment and all consequential orders, joined the applicants as defendants with leave to defend, and directed each party to bear its own costs of the applications.

Key legal issues

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01

Locus standi of non-parties to seek review

Holding

The applicants have locus standi to bring the review applications because they will be affected by execution of the decree, which would infringe their right to land without a hearing.

Reasoning

Section 80 of the Civil Procedure Act allows any person who considers himself aggrieved by a decree or order to apply for review. The applicants explained that they are aggrieved because implementation of the order would infringe their right to land without an opportunity to be heard. No appeal had been filed against the orders sought to be reviewed, and the respondents did not file replying affidavits to contest the applicants' averments of lack of diligence.

p. 5
02

Sufficient cause for review under Order 45

Holding

Sufficient cause exists because the suit was filed against deceased persons (2nd-6th defendants), the consent order concerned titles that had ceased to exist, and execution would issue double titles over the same parcels.

Reasoning

The court noted that the trial judge had found it unclear what happened to the surrendered titles, and that the respondents neither appealed nor denied that the titles had ceased to exist or that the 2nd to 6th defendants had died. If so, the proceedings before the judge were a nullity, which constitutes sufficient cause for review under Order 45's residual discretion.

p. 5
03

Limitation/ six-month delay argument

Holding

The submission that the applications were time barred because filed after six months has no basis in law; the statutory framework requires only that the application be made without unreasonable delay.

Reasoning

Mr Oduor argued the applications were filed after six months had lapsed. The court held that neither section 80 of the Civil Procedure Act nor Order 45 of the Civil Procedure Rules prescribes a six-month timeline for review applications; the only temporal requirement is that the party moves the court without unreasonable delay. The submission was therefore rejected as not grounded in the law.

p. 5

Legal principles established

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  • Any person aggrieved by a decree or order may apply for review under section 80 of the Civil Procedure Act, even where they were not parties to the original suit, if they will be affected by the orders.
  • Neither section 80 of the Civil Procedure Act nor Order 45 of the Civil Procedure Rules imposes a six-month timeline for review applications; the requirement is only absence of unreasonable delay.

Court orders

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  1. 1.The judgment of the court delivered on 30th March 2012 be and is hereby set aside together with all consequential orders flowing therefrom, more particularly the orders given on the 26th Nov 2013 & 11th April 2017 in ELC Case no 166 of 2015
  2. 2.The applicants herein are joined as defendants with leave to defend the suit
  3. 3.Each party shall meet its costs of the respective applications

Authorities

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Legislation

  • Constitution of KenyaArticle 62
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 2
  • Civil Procedure RulesOrder 45

Cases cited (2)

  • Mwinyi Hamisi Ali vs. the Attorney General & Another
    Mombasa Court of Appeal Civil Appeal No. 125 of 1997
  • Faba Motors Limited vs. Nesbitt
    Nairobi HCCC No.1403 of 1967
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review of judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Jumaa Chengo Kashasha & another v Registrar of Titles Mombasa & 5 others [2018] KEELC 2498 (KLR)", Case Analysis (2018). Originating Summons dated 2nd July 2004 (Mombasa); judgment reviewed in connection with ELC Case No. 166 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2498/eng@2018-07-05

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