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ELCDismissedNotice of Motion dated 21st April 2017 (Malindi ELC)· [2018] KEELC 3931 (KLR)

Bidika Mzungu Mlewa v Land Registrar Kilifi & another [2018] KEELC 3931 (KLR)

Environment and Land Court
15 March 2018
JOJ.O. Olola
1,571 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to cancel land titles because the current title holders were never told about the case or joined as parties.

What this practically means

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Executive summary

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The applicant, Bidika Mzungu Mlewa, holding a power of attorney from Kazungu Mwatete Mlewa, sought eight orders by Notice of Motion dated 21st April 2017, principally to adopt and enforce the decision of the Malindi Land Disputes Tribunal in Land Dispute Case No. 6 of 2005 as adopted by the Principal Magistrate's Court at Malindi. The Tribunal had declared illegal the transfer of Kilifi/Jimba/42 to Robert Mureithi Githinji and its subdivision into portions 472, 473 and 474, and directed that the land revert to Kazungu Mwatete and Kalume Yaa Baya. The applicant sought nullification of the titles, cancellation of the title deeds, and registration of the original owners. The Land Registrar and Attorney General filed Grounds of Opposition, arguing the applicant had no legal interest, that affected parties were not enjoined, and that the Tribunal lacked jurisdiction. The court held that although the Tribunal's decision was adopted and a decree would be enforceable under the Civil Procedure Act, the Tribunal exceeded its jurisdiction in nullifying titles of third parties without notice. Further, rectification of the register under Sections 79 and 80 of the Land Registration Act required notification of affected parties and compliance with natural justice. Since the applicant neither enjoined the Objector nor the third parties whose titles were to be cancelled, the court declined to grant the orders sought and dismissed the application with no order as to costs.

Key legal issues

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01

Enforceability of the Land Disputes Tribunal decision as adopted by the Principal Magistrate's Court

Holding

Once the court entered judgment on the Tribunal's decision, a decree would issue enforceable under the Civil Procedure Act; however, the advice to move to the High Court for cancellation of titles was not adopted into the court order

Reasoning

Section 7(2) of the repealed Land Disputes Tribunal Act provided that upon adoption, judgment would be entered and a decree would issue enforceable under the Civil Procedure Act. The adopted order omitted the Tribunal's direction that claimants move to the High Court for cancellation of titles, so that part was never a court order capable of enforcement.

p. 2
02

Nullification of third-party titles without notice

Holding

The Tribunal exceeded its jurisdiction under Section 3 of the Land Disputes Tribunal Act by purporting to nullify titles of third parties without notifying them

Reasoning

The Tribunal's mandate covered boundary disputes, claims to occupy or work land, and trespass. Nullifying titles created and sold to third parties fell outside that mandate, and the affected parties should at least have been notified before purported nullification.

p. 3
03

Rectification of the register and natural justice

Holding

The court declined to order rectification/cancellation of titles because affected parties were not enjoined or notified, as required by Section 79(4) of the Land Registration Act

Reasoning

Section 79(2) empowers the Registrar to rectify a register obtained by fraud, but within legal confines ensuring affected parties are notified. Rectification not ordered by a court under Section 80 must comply with rules of natural justice. The applicant's failure to join affected parties defeated the application.

p. 3

Legal principles established

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  • A decree entered on a Land Disputes Tribunal decision is enforceable under the Civil Procedure Act (Section 7(2) of the repealed Land Disputes Tribunal Act)
  • Rectification or revocation of registered titles requires notification of affected parties and compliance with natural justice under Sections 79(4) and 80 of the Land Registration Act

Court orders

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  1. 1.The application dated 21st April 2017 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Enforcement/adopted decision of Malindi Land Disputes Tribunal under the (repealed) Land Disputes Tribunal Act, Section 7(2); Land Registration Act

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, "Bidika Mzungu Mlewa v Land Registrar Kilifi & another [2018] KEELC 3931 (KLR)", Case Analysis (2018). Notice of Motion dated 21st April 2017 (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3931/eng@2018-03-15

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