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ELCPartially AllowedNot stated in the judgment (notice of motion dated 30th September 2016 in the principal suit)· [2018] KEELC 4341 (KLR)

Samuel Muthami Wahome v Charles Ndumia Wahome [2018] KEELC 4341 (KLR)

Environment and Land Court
22 February 2018
1,572 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed review of a judgment after suit land was subdivided mid-case, but refused to strip a non-party of his parcel without a hearing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyeri (L N Waithaka J) determined a notice of motion dated 30th September 2016 by the plaintiff, Samuel Muthami Wahome, seeking review of the judgment of Ombwayo J delivered on 20th January 2016 (and delivered on 1st February 2016 by Waithaka J), which had dissolved a trust over LR Tetu/Kiriti/964 and cancelled it. The applicant sought substitution of that order with an order dissolving the trust over the subdivision parcels Tetu/Kiriti/1105 and 1107, and cancellation of Herman Mariine Nderi's registration over Tetu/Kiriti/1106. He showed that during the suit a caution/restriction was removed without his knowledge (6th August 2015), the title was closed on subdivision (12th August 2015), and one parcel was transferred to a third party, rendering the decree incapable of execution. The respondent contended the restriction was removed before the suit was filed and that orders would adversely affect Herman Mariine Nderi, who was not a party. Applying Order 45 Rule 1 and Salama Mahmoud Saad v Kikas Investments, the court found the uncontroverted change in the status of the property constituted sufficient reason for review. However, invoking Pashito Holdings and the audi alteram partem rule, the court declined to extend the review to Tetu/Kiriti/1106 in the hands of the non-party Nderi. The judgment was reviewed; the trust over Tetu/Kiriti/1105 and 1107 was dissolved with transfer directed to the plaintiff, his siblings and their heirs; costs were awarded to the plaintiff.

Key legal issues

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01

Whether change in the status of the suit property during pendency of the suit justifies review

Holding

Yes. The restriction was removed on 6th August 2015 and the title closed on subdivision on 12th August 2015, both during the suit, rendering the orders impossible to execute; review was required to give effect to the judgment.

Reasoning

The green card (SMW-1) showed a restriction on dealings with Tetu/Kiriti/964 when the suit was filed, removed only on 6th August 2015, and the title was closed on 12th August 2015 on subdivision into three parcels. The applicant's contentions that these changes occurred without his or the court's knowledge and defeated execution were uncontroverted. This amounted to sufficient reason for review under Order 45 Rule 1.

p. 3
02

Whether review could extend to the third-party-registered parcel Tetu/Kiriti/1106

Holding

No. Herman Mariine Nderi, the registered owner of Tetu/Kiriti/1106, was not a party to the suit and had to be heard before any order affecting his rights.

Reasoning

Although the defendant's transfer of one subdivision was calculated to defeat the ends of justice, the court held that review could not affect Herman Nderi's registered rights without notice and a hearing, following the audi alteram partem principle in Pashito Holdings. Relief over Tetu/Kiriti/1106 was therefore severed from the review order, which was confined to parcels registered in the defendant's name (1105 and 1107).

p. 3

Legal principles established

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  • Review is available under Order 45 Rule 1 where there is discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason
  • A court cannot grant relief against a third party who is not party to the proceedings without first according that party an opportunity to be heard

Court orders

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  1. 1.The judgment of Ombwayo J dated 20th January 2016 and delivered on 1st February 2016 by Waithaka J be and is hereby reviewed
  2. 2.The order dissolving the trust in respect of L.R No. Tetu/Kiriti/964 and cancelling it be and is hereby substituted with an order dissolving the trust in respect of L.R Nos. Tetu/Kiriti/1105 and 1107 and directing the transfer of L.R Nos. Tetu/Kiriti/1105 and 1107 to the plaintiff, his siblings and their heirs
  3. 3.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (2)

  • Salama Mahmoud Saad v. Kikas Investments Ltd & Another
    (2014) eKLR
  • Pashito Holdings Limited & Another vs Paul Ndungu & 2 OTHERS
    [1197] eKLR (as printed)
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Samuel Muthami Wahome v Charles Ndumia Wahome [2018] KEELC 4341 (KLR)", Case Analysis (2018). Not stated in the judgment (notice of motion dated 30th September 2016 in the principal suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4341/eng@2018-02-22

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