Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedE.L.C. Case No. 71A of 2014 (O.S.) (Formerly ELC Kerugoya No. 47 of 2012 (O.S.), Formerly Embu H.C. Civil Case No. 36 of 2007 (O.S.))· [2019] KEELC 1318 (KLR)

Faustino Njeru Njoka & another v Rugano Nthiga & 18 others; Stephene Igogo Matheri & 2 others (Interested Parties) [2019] KEELC 1318 (KLR)

Environment and Land Court
26 September 2019
2,093 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court confirmed that quashing a minister's land adjudication decision automatically restores the original award, allowing title rectification.

What this practically means

#

Executive summary

#
This was an originating summons by two applicants under Order 37 of the Civil Procedure Rules and Sections 25 and 26 of the Land Registration Act seeking rectification of the registers for twelve parcels of land in Mbeere/Mbita by cancelling the names of the current registered proprietors (named respondents) and substituting new proprietors listed in a schedule. The claim was anchored on a High Court judicial review decision of 15th December 2004 (Misc. Application No. 72 of 2003, by consent applicable to Misc. Application No. 1 of 2004) in which Lenaola J quashed the minister's decision in adjudication Appeal No. 49 of 1997, which had awarded the suit lands to the Ikandi clan. The 2nd Interested Party opposed, contending that the quashing orders conferred no proprietary rights and that the summons was overtaken by events, having filed a fresh suit (Embu ELC No. 18 of 2019) to challenge the 2004 decision. The court framed three issues: the effect of the 2003 judicial review judgment; entitlement to the reliefs; and costs. It held that quashing the minister's decision automatically restored the Land Adjudication Officer's award to the Applicants' Nditi clan; that a superior court decree can only be challenged by appeal or review, not by a fresh suit in a co-ordinate court; and that costs follow the event. The originating summons was allowed in terms of prayers 1A, 2A and 3A, with costs awarded against the 2nd Interested Party.

Key legal issues

#
01

Effect of the judicial review judgment in High Court Misc. Application No. 72 of 2003

Holding

The quashing of the minister's decision restored the Land Adjudication Officer's award in favour of the Applicants' clan; the judicial review order conferred and restored property rights contrary to the 2nd Interested Party's contention.

Reasoning

The court traced the adjudication history: the Land Adjudication Officer awarded the suit properties to the Applicants' Nditi clan in an objection case; the minister on appeal awarded them to the Ikandi clan; the High Court quashed the minister's decision by certiorari on 15th December 2004, with consent applying to Misc. Appl. No. 1 of 2004. The court held the status quo prevailing before the minister's decision must be sustained and rejected the argument that the review orders had no proprietary effect.

p. 5
02

Whether the Applicants are entitled to the rectification reliefs sought

Holding

The Applicants were entitled to enjoy the fruits of their judgment; the certiorari restored their property rights and there was no legal justification to deny the rectification reliefs.

Reasoning

The court noted no appeal was preferred by the Ikandi clan against the High Court decision. The 2nd Interested Party's attempt to relitigate the matter via a fresh suit (Embu ELC No. 18 of 2019) was held to be an improper avenue, as a regular decree of a superior court can only be challenged by review or appeal, not by a fresh suit in a co-ordinate court.

p. 5
03

Costs of the proceedings

Holding

Costs follow the event; the successful Applicants were awarded costs of the action against the 2nd Interested Party, there being no good reason to deprive them of costs.

Reasoning

Applying the proviso to Section 27 of the Civil Procedure Act and the decision in Hussein Janmohamed & Sons Ltd v Twentsche Overseas Trading Co. Ltd [1967] EA 287, the court found no good reason to deny the successful litigants their costs.

p. 5

Legal principles established

#
  • Where the High Court quashes a minister's decision on appeal under the Land Adjudication Act, the decision of the Land Adjudication Officer is automatically restored.
  • A regular order or decree of a superior court cannot be challenged by filing a fresh suit in a court of co-ordinate jurisdiction; the proper avenues are appeal or review.
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless there is good reason to depart from that rule.

Court orders

#
  1. 1.The amended originating summons dated 7th March 2007 and amended on 2nd February 2018 is allowed in terms of orders 1A, 2A and 3A thereof
  2. 2.Rectification of the registers for the suit parcels by cancelling the names of the current registered proprietors and registering the new proprietors specified in the schedule to the summons
  3. 3.The District Land Registrar to register the persons set out in the schedule as proprietors and issue title deeds to them
  4. 4.Title deeds held by the current registered proprietors to be dispensed with when registering and issuing title deeds to the new proprietors
  5. 5.The Applicants are awarded costs of the suit as against the 2nd Interested Party

Authorities

#

Legislation

  • Civil Procedure RulesOrder 37 Rules 1, 8 and 11
  • Land Registration ActSections 25 and 26
  • Civil Procedure Act (Cap. 21)Section 3A
  • Civil Procedure Act (Cap. 21)Section 27 (proviso)
  • Land Adjudication Act (Cap. 284)Section 29

Cases cited (1)

  • Hussein Janmohamed & Sons Ltd v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Order 37 Rules 1, 8 and 11 of the Civil Procedure Rules, Sections 25 and 26 of the Land Registration Act 2012 and Section 3A of the Civil Procedure Act (Cap. 21)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Faustino Njeru Njoka & another v Rugano Nthiga & 18 others; Stephene Igogo Matheri & 2 others (Interested Parties) [2019] KEELC 1318 (KLR)", Case Analysis (2019). E.L.C. Case No. 71A of 2014 (O.S.) (Formerly ELC Kerugoya No. 47 of 2012 (O.S.), Formerly Embu H.C. Civil Case No. 36 of 2007 (O.S.)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1318/eng@2019-09-26

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