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ELCPartially AllowedConsolidation of Meru HC Miscellaneous Application No. 147 of 2009 and Meru HCCC No. 33 of 2009· [2018] KEELC 3913 (KLR)

Royford Riungu Kuura & 2 others v M.Kuura M’Riria & 2 others [2018] KEELC 3913 (KLR)

High Court of Kenya
19 March 2018
PNP. M. Njoroge
1,631 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court cancelled disputed land titles and ordered eviction, but rewarded the family only token damages because they never proved actual losses.

What this practically means

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Executive summary

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In a suit nearly a decade old, the High Court at Chuka (P. M. Njoroge, J) heard a consolidated claim (Meru HC Misc. Application No. 147 of 2009 and Meru HCCC No. 33 of 2009) by the administrators of the estate of Kuura Mbae against the 1st and 2nd defendants and others. The plaintiffs alleged that in 1983 the Land Adjudication Officer, Chuka, unilaterally cancelled their father's registration of the suit land without a hearing, substituting the 1st defendant's name; that High Court orders in Misc. Application No. 257 of 1983 quashing that decision were briefly set aside and then reinstated by a two-judge bench in 1990; and that, despite those orders, land officials issued title deeds to the defendants in 1997 and fraudulently created new parcels. On the hearing date the defendants, who had twice failed to comply with Order 11 compliance orders, sought an adjournment. The court refused, found service duly effected, and proceeded ex-parte under Order 12. PW1, Charles Nyaga Kuura, adopted his witness statement. The court framed a single issue: whether the plaintiffs deserved the orders prayed for. It found their uncontroverted evidence proved that the register changes were irregular and granted judgment: declaration of nullity of the subdivision and register changes, restoration of the register pursuant to the 1983 order, cancellation of the defendants' titles, nominal general damages of Kshs. 200,000 (general damages being limited for want of proof), eviction of the defendants with OCS assistance, costs, and interest. Consolidated suits were deemed heard and determined.

Key legal issues

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01

Whether the hearing should proceed ex-parte after defendants' non-compliance with Order 11

Holding

The suit proceeded ex-parte because the defendants, having ignored two compliance orders, could not rely on their own default to seek an adjournment

Reasoning

The defendants had twice been ordered to comply with Order 11 and failed. Their application to adjourn on the basis of that non-compliance was an attempt to benefit from their own default. The court invoked Order 12, confirmed service of hearing notice through the presence of an advocate holding brief, and proceeded ex-parte.

p. 1
02

Whether an eviction order could issue though not pleaded

Holding

Yes; the oral prayer fell within the court's inherent power under section 3A of the Civil Procedure Act

Reasoning

Although eviction was never in the plaint and was only raised orally by PW1, section 3A empowers the court to make orders necessary for the ends of justice or to prevent abuse of process. The court held the oral prayer fell within that provision and granted it.

p. 4
03

Whether the land adjudication and register changes affecting the suit land were lawful

Holding

The subdivision and subsequent register changes were null and void; titles to the 1st and 2nd defendants were to be cancelled and the register restored

Reasoning

PW1's uncontroverted evidence was that the Land Adjudication Officer cancelled the father's name without a hearing; High Court orders quashing that decision and restoring the status quo ante were never implemented. The defendants led no evidence to rebut this. The court therefore granted the declaratory and restoration prayers.

p. 4

Legal principles established

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  • A party who fails to comply with Order 11 cannot seek an adjournment on the ground of that non-compliance; the court may proceed with the hearing under Order 12

Court orders

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  1. 1.Declaration that the subdivision by the 3rd defendant's agents of the original Land Reference Number Muthambi/Gatua/1266 and subsequent changes in the Land Register/Record at Chuka are null and void
  2. 2.Order directing the Land Registrar – Chuka to restore the Land Register/Record pursuant to the order made in H.C Miscellaneous Application No. 257 of 1983
  3. 3.Order that the District Land Registrar – Chuka cancel the titles issued to the 1st and 2nd defendants
  4. 4.Nominal general damages of Kshs. 200,000 awarded to the plaintiffs
  5. 5.Order directing that the defendants be evicted by the apposite legal entities with the assistance of the OCS in charge of the area where the land is situated
  6. 6.Costs of the suit awarded to the plaintiffs
  7. 7.Interest on damages and costs from the date of delivery of the judgment
  8. 8.Suits consolidated with this suit by order of 20th February 2014 deemed heard and determined
Jurisdiction invoked
Original civil jurisdiction of the High Court under section 3A of the Civil Procedure Act and the Civil Procedure Rules (Orders 11 and 12)

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, "Royford Riungu Kuura & 2 others v M.Kuura M’Riria & 2 others [2018] KEELC 3913 (KLR)", Case Analysis (2018). Consolidation of Meru HC Miscellaneous Application No. 147 of 2009 and Meru HCCC No. 33 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3913/eng@2018-03-19

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