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ELCDismissedNot stated in the judgment (Notice of Motion dated 16th March, 2015)· [2019] KEELC 1589 (KLR)

Perikan Moko Parusan v Registrar of Lands Kajiado District & another [2019] KEELC 1589 (KLR)

Environment and Land Court
1 October 2019
COCHRISTINE OCHIENG
1,514 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to jail the Kajiado Land Registrar for contempt because the landowner could not prove the registrar had deliberately disobeyed a court order.

What this practically means

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Executive summary

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The Applicant, Pariken Moko Parusan, moved the Environment and Land Court at Kajiado by Notice of Motion dated 16th March, 2015, brought under section 5(1) of the Judicature Act, Order 52 Rule 3 of the Rules of the Supreme Court of England 1965 and section 3A of the Civil Procedure Act, seeking committal of the Registrar of Lands, Kajiado District to civil jail for disobeying an order of the Kajiado Resident Magistrate dated 21st March, 2014 requiring the Registrar to furnish particulars and records for, or reconstruct the Green Card for, parcel Kajiado/Kitengela/7611. The Registrar, Paul Tonui, opposed the application, explaining that the Green Card was not authentic and was withheld because fraud was suspected in the Applicant's registration as proprietor of the parcel, which arose from the subdivision of Kajiado/Kitengela/4250, and that a restriction had been placed on the title pending investigation. He urged the Applicant to explain his registration and surrender his title for cancellation. The Applicant maintained he purchased the land from Christopher Njenga Gathecha and obtained a replacement title via Gazette Notice No. 555 of 18th February, 2011. Applying the four-element test for civil contempt from North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi, the court held that the Applicant failed to prove deliberate, willful disobedience, noting the Registrar's conduct was not deliberate given the suspected fraud, and that committal would violate his rights under Article 24 of the Constitution. The application was dismissed with costs in the cause.

Key legal issues

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Whether the Land Registrar should be committed to civil jail for disobeying the order of 21st March, 2014

Holding

The application for committal was dismissed as the Applicant did not prove willful, deliberate disobedience

Reasoning

The Registrar explained that the Green Card was withheld because fraud was suspected in the registration of the Applicant as proprietor of Kajiado/Kitengela/7611, and a restriction had been placed on the title pending investigation. The court accepted that the Registrar, as custodian of land records, had to investigate true ownership, so his conduct was not deliberate and committal would violate his rights under Article 24 of the Constitution.

p. 2

Legal principles established

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  • Four elements must be proved for civil contempt: clear and unambiguous terms of the order binding on the defendant; knowledge or proper notice of the terms; breach of the terms; and deliberate conduct, proved to a standard higher than civil cases

Court orders

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  1. 1.The Notice of Motion dated 16th March, 2015 is disallowed/unmerited
  2. 2.Costs in the cause

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Civil Procedure ActSection 3A
  • Rules of the Supreme Court of England 1965Order 52 Rule 3
  • Environment and Land Court ActSection 29
  • Constitution of KenyaArticle 24
  • Registered Land ActNot specified

Cases cited (8)

  • Woburn Estate Ltd and Margaret Bashforth
    (2016) eKLR
  • Spencon Kenya Ltd (Under Administration) v The Chief Land Registrar
    Nairobi HCC NO. 7 of 2016 (2018) eKLR
  • Ramesh Popatlal Shah & 2 Others v National Industrial Credit Bank Limited
    (2005) eKLR
  • Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning
    (2017) eKLR
  • Fredrick Okolla Ojwang v Orange Democratic Movement & 2 others
    (2017) eKLR
  • Mburu Ndekei v Ruth Njeri Mutema
    (2017) eKLR
  • Lucas Mbaru Munga & Another v Pancras Mbaru Rondo & 2 Others
    (2012) eKLR
  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    (2016) eKLR
Jurisdiction invoked
Section 5(1) of the Judicature Act; Order 52 Rule 3 of the Rules of the Supreme Court of England 1965; Section 3A of the Civil Procedure 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, "Perikan Moko Parusan v Registrar of Lands Kajiado District & another [2019] KEELC 1589 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 16th March, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1589/eng@2019-10-01

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