Elias Ndwiga Njoka v Land Registrar Kajiado & another; Wanachuo Investment Ltd (Interested Party) & another [2019] KEELC 1760 (KLR)
The bottom line
#The court cancelled a land judgment won through improper service and non-disclosure, but kept land records intact until fraud claims are fully tested at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment and vesting orders of 21st November 2014 should be set aside
Yes - the 1st Defendant was not duly served and the Interested Parties, whose interests the Plaintiff knew of, were never enjoined; the threshold for review was met
Service on the Land Registrar by substituted newspaper service alone did not comply with section 13 of the Government Proceedings Act and Order 5 Rule 9. The Plaintiff, having been aware of other interests from criminal proceedings, failed to enjoin the Interested Parties and failed to disclose material facts. Three parallel green cards over the suit land raised integrity concerns that could not be ignored, requiring all allegations to be tested at a full hearing.
Whether the consent orders of 9th July 2018 should be set aside
Yes - the consent to reconstruct the Green Card without gazettement was obtained through non-disclosure of material facts
A consent order has contractual effect and can only be set aside on grounds justifying setting aside a contract, including non-disclosure of material facts. Since the Plaintiff was aware other parties claimed the suit property, the reconstructed Green Card should have been gazetted; seeking the contrary amounted to failure to disclose material facts, satisfying the review threshold.
Whether the records and registers arising from the survey mutations should be quashed
No - declined pending the full hearing of the suit on its merits
Having set aside the judgment and the consent orders, the foundation for nullifying the records was gone. With competing claims of fraud over the titles, the veracity of all parties' allegations must be tested at a hearing; quashing the records prematurely would pre-empt that determination.
Legal principles established
#- Service on Government and government agencies must comply with section 13 of the Government Proceedings Act and Order 5 Rule 9 of the Civil Procedure Rules; substituted service by newspaper alone does not constitute due service on such agencies
- A consent judgment or order may only be set aside on grounds which would justify setting aside a contract, such as fraud, collusion, illegality or non-disclosure of material facts
- Allegations of fraud must be proved and cannot be determined without a full hearing
- An error apparent on the face of the record must be one where there could reasonably be no two opinions
Court orders
#- 1.Review and setting aside of the ex parte judgment delivered on 21st November 2014 and the Decree and Vesting Orders issued thereafter
- 2.Setting aside of the consent orders dated 9th July 2018
- 3.Refusal to quash or nullify the records, registers and appurtenant entries regarding Kajiado/Kisaju/121 arising from survey mutations serial numbers 074955, 360640 and 360643 pending hearing and determination of the suit on its merits
- 4.Applications dated 20th March 2019 and 21st March 2019 allowed; application dated 10th December 2018 disallowed
- 5.Costs in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 63(e) and 80 of the Civil Procedure Act; Orders 5, 22, 45 and 51 of the Civil Procedure Rules (review and setting aside applications)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elias Ndwiga Njoka v Land Registrar Kajiado & another; Wanachuo Investment Ltd (Interested Party) & another [2019] KEELC 1760 (KLR)", Case Analysis (2019). ELC Case No. 393 of 2017 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1760/eng@2019-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.