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ELCAllowedJudicial Review Motion filed 16 October 2014 (application dated 27 July 2018)· [2019] KEELC 2740 (KLR)
Republic v Director of Land Adjudication & Settlement Department Ex parte Stephen Muchofonyori; Nancy Njoki Mburu (Intended Interested Party) (Judicial Review 47 of 2013) [2019] KEELC 2740 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court set aside a land judgment because a co-owner was never heard, confirming that no one can lose land without being joined to the case.
What this practically means
#Executive summary
#The suit was a judicial review motion for mandamus filed on 16 October 2014 seeking to compel the Director of Land Adjudication to subdivide parcel Nyandarua/Salient/905 and register mutation forms so the ex-parte applicant could obtain title to Nyandarua/Mawingo/Salient/1794. The ex-parte applicant claimed to have purchased 2½ acres from Julius Kiplangat Bonde, who allegedly jointly owned Plot 905 with Nancy Njoki. The respondent, through John Welangai, deposed that Plot 905 was allocated jointly to Bonde and Nancy Njoki in 1999, that Bonde sold his share to Shadrack G. King'ori without payment or documentation, and that the whole parcel was later allocated to Nancy Njoki, who paid for it and awaits discharge of charge. On 29 March 2018 Roseline Korir J granted mandamus, finding ample evidence of purchase by the ex-parte applicant and no superior right in Nancy Njoki. Nancy Njoki then applied on 27 July 2018 for stay of execution and setting aside of the judgment, asserting she was the legal owner of Plot 905 and had never been heard. Munyao Sila J, hearing the matter after Korir J's transfer and the file's transfer to the Environment and Land Court, held that she had an interest in the land and was entitled to be heard before judgment; failing to enjoin her offended natural justice. The judgment of 29 March 2018 was set aside; Nancy Njoki was enjoined as interested party, and Shadrack Gakuru and Julius Kiplangat Bonde were to be enjoined as additional interested parties, each with 14 days to file affidavits. Costs were awarded to the applicant against the ex-parte applicant.
Key legal issues
#01
Enjoinder of a party with an interest in the subject land and natural justice
Holding
The applicant has an interest in the land under litigation and was entitled to be heard before judgment; the judgment was set aside so she could be enjoined.
Reasoning
The court limited itself to the threshold question of interest, not title. Since the applicant was not made a party, she was never heard before judgment, and if the judgment were executed she would lose her land unheard, offending natural justice. Other stakeholders (Shadrack Gakuru and Julius Kiplangat Bonde) were likewise to be enjoined.
p. 2
Legal principles established
#- A person with an interest in land that is the subject of litigation must be heard before a judgment affecting that interest is made
Court orders
#- 1.The application dated 27 July 2018 is allowed
- 2.The judgment/ruling of 29 March 2018 is set aside
- 3.Nancy Njoki Mburu is enjoined to the suit as interested party, at liberty to file an affidavit in response to the main motion within 14 days
- 4.Shadrack Gakuru and Julius Kiplangat Bonde be enjoined as additional interested parties, at liberty to file their respective affidavits within 14 days of service
- 5.The applicant will have the costs of this application as against the ex-parte applicant
- Jurisdiction invoked
- Jurisdiction as Environment and Land Court following transfer of the file from the High Court, this being a land matter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director of Land Adjudication & Settlement Department Ex parte Stephen Muchofonyori; Nancy Njoki Mburu (Intended Interested Party) (Judicial Review 47 of 2013) [2019] KEELC 2740 (KLR)", Case Analysis (2019). Judicial Review Motion filed 16 October 2014 (application dated 27 July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2740/eng@2019-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.