Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2019] KEELC 13 (KLR)

Rural Housing Estate v National Land Commission & 2 others [2019] KEELC 13 (KLR)

Environment and Land Court
13 December 2019
1,488 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court threw out a land judgment because the affected landowner was never given a chance to be heard.

What this practically means

#

Executive summary

#
This was an application dated 30 November 2017 by Rural Housing Estate seeking review of the court's judgment delivered on 23 October 2017 in a land dispute involving the National Land Commission and the Estate of Sisiwa Arap Malakwen over parcel L.R. 772/4/2 in Huruma Estate, Eldoret. The applicant claimed to be the registered owner of the parcel since 1978, having purchased it through Consolidated Properties Ltd, and asserted that it was never invited to participate in the proceedings despite being mentioned in the pleadings. It sought setting aside of the proceedings and judgment and an order that the matter start de novo. The application was brought under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. The court identified the pertinent issue as whether the applicant had established any of the grounds for review: discovery of new and important matter, error apparent on the face of the record, other sufficient reasons, and absence of undue delay. Relying on the cardinal right to be heard, the court found that the applicant was an affected person who had never been heard, and that this constituted sufficient reason for review. It also found no evidence that the applicant's titles had been cancelled and held that allegations of fraud against the titles could not be resolved without hearing the applicant. On delay, the court found the applicant acted expeditiously, filing within 14 days of learning of the judgment. The court allowed the application, set aside the proceedings and judgment, ordered the matter to start de novo, and awarded costs to the applicant.

Key legal issues

#
01

Whether non-joinder and non-participation of an affected party constitutes sufficient reason for review

Holding

That the applicant was affected by the judgment yet was never heard is a sufficient reason to review and set aside the judgment and order a hearing de novo.

Reasoning

The court reasoned that the suit was fundamentally a dispute over ownership of L.R. 772/4/2, that the applicant held titles to the land that had not been shown to be cancelled, and that allegations of fraud in obtaining those titles could not be determined without hearing the applicant. Since the applicant was severally mentioned in the pleadings and the judgment acknowledged a transfer to it, natural justice required that it be enjoined and heard.

p. 3
02

Whether the application was brought without undue delay

Holding

The application was made expeditiously, within 14 days of the applicant becoming aware of the judgment.

Reasoning

Order 45 requires an application for review to be made without unreasonable delay. The court found that the applicant only became aware of the judgment on 20 November 2017 and filed the application on 4 December 2017, a period of about 14 days, which the court characterized as expeditious and thus satisfying the delay requirement.

p. 3

Legal principles established

#
  • The right to be heard is cardinal, and a decision made against an affected person who was not heard is sufficient reason to warrant review.
  • A person with an interest in disputed land has a right to be heard before ownership is determined.

Court orders

#
  1. 1.The application for review dated 30/11/2017 is allowed
  2. 2.The proceedings herein and the judgment delivered on 23/10/2017 are set aside
  3. 3.The matter is to start de novo
  4. 4.Costs to the applicant

Authorities

#

Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 63(e)
  • Civil Procedure Rules, 2010Order 45 Rule 1
Jurisdiction invoked
Section 80 of the Civil Procedure Act (Cap 21) and Order 45 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rural Housing Estate v National Land Commission & 2 others [2019] KEELC 13 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/13/eng@2019-12-13

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