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ELCPartially AllowedE.L.C. Case No. 201 of 2015 (formerly Kerugoya ELC No. 29 of 2014)· [2019] KEELC 4085 (KLR)

Kenneth Kariuki Ireri v Titus Kithinji Ndichi [2019] KEELC 4085 (KLR)

Environment and Land Court of Kenya
28 March 2019
2,443 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court restored Titus Ndichi's land, holding that a title obtained through a consent judgement made without hearing the registered owner is a nullity.

What this practically means

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Executive summary

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The plaintiff sued for an eviction order, alleging he bought Title No. Nthawa/Riandu/1298 in 1984 and was registered as proprietor, but the defendant had wrongfully settled on it. The defendant filed a defence and counterclaim challenging the plaintiff's title, asserting he was allocated the land during adjudication and registered as proprietor in 1989 following a final Ministerial appeal decision under section 29 of the Land Adjudication Act. He alleged that through collusion between the 2nd – 4th defendants in the counterclaim, Embu PMCC No. 262 of 1992 resulted in a consent judgement under which his registration was cancelled and the 2nd defendant registered; the defendant was not party to those proceedings, and the consent judgement was set aside on 13th April 1994 together with consequential orders. The court framed six issues under Order 15 Rule 2 of the Civil Procedure Rules and found that the cancellation of the defendant's registration was a serious violation of natural justice and was irregular, unlawful and void ab initio, especially as the magistrate's court itself had set aside the consent judgement. Applying Macfoy v United Africa Co Ltd, the court held the plaintiff, whose transferor acquired nothing under a null consent judgement, obtained no good title. Although no direct fraud was proved, the 2nd – 4th defendants were found to have acted dishonestly. The plaintiff's suit was dismissed in its entirety; judgment was entered for the defendant on the counterclaim, with a declaration that he is the lawful proprietor and an order to the Land Registrar Mbeere to restore his name to the register. Costs of the suit and counterclaim were awarded against the 2nd – 4th defendants in the counterclaim.

Key legal issues

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01

Lawfulness of the cancellation of the Defendant's registration

Holding

The cancellation was irregular, unlawful and void ab initio because the Defendant was deprived of his title without a hearing

Reasoning

The Defendant was registered following the Minister's final decision under section 29 of the Land Adjudication Act. The consent judgement in Embu PMCC No. 262 of 1992 was obtained in proceedings to which he, the registered proprietor, was not a party. That was a serious violation of natural justice. The Magistrate's court itself later set aside the consent judgement and all consequential orders on 13th April 1994, confirming there was no lawful cancellation.

p. 3
02

Validity of the Plaintiff's title derived from the 2nd Defendant in the counterclaim

Holding

The Plaintiff did not obtain a good title because his transferor acquired nothing under a consent judgement that was a nullity

Reasoning

The 2nd Defendant in the counterclaim acquired the suit property pursuant to a consent judgement which had been set aside and which was, in any event, a nullity for breach of natural justice. Applying Macfoy v United Africa Co Ltd, nothing could be founded on a void act; the 2nd Defendant had nothing to pass to the Plaintiff, who therefore was not lawfully registered as proprietor.

p. 3
03

Fraud, irregularity or collusion by the 2nd – 4th Defendants

Holding

Although not strictly necessary to decide, the court concluded the 2nd – 4th Defendants acted dishonestly

Reasoning

No direct evidence of fraud was adduced, but the court found the 2nd – 4th Defendants knew the Defendant was the registered owner, failed to join or notify him of the Magistrate's court proceedings, failed to rescind their actions after the consent order was set aside, and the 2nd Defendant transferred the property to the Plaintiff after the setting-aside order.

p. 3

Legal principles established

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  • A void act is a nullity requiring no court order to set aside, and every proceeding founded on it is equally bad

Court orders

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  1. 1.The Plaintiff’s suit against the Defendant is dismissed in its entirety
  2. 2.Judgment entered for the Defendant on the counterclaim: a declaration that Titus Kithinji Ndichi is the lawful proprietor of Title No. Nthawa/Riandu/1298
  3. 3.An order directing the Land Registrar Mbeere to cancel or delete the name of Kenneth Kariuki Ireri from the land register and restore the name of Titus Kithinji Ndichi as proprietor of Title No. Nthawa/Riandu/1298
  4. 4.Costs of the suit and the counterclaim to be borne by the 2nd – 4th Defendants in the counterclaim

Authorities

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Legislation

  • Land Adjudication Act (Cap 284)section 29, section 29(3)
  • Civil Procedure RulesOrder 15 Rule 2

Cases cited (2)

  • Macfoy Vs United Africa Co. Ltd
    [1961] All ER 1169 at Page 1172
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning title to land); issues framed under Order 15 Rule 2 of the Civil Procedure Rules

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, "Kenneth Kariuki Ireri v Titus Kithinji Ndichi [2019] KEELC 4085 (KLR)", Case Analysis (2019). E.L.C. Case No. 201 of 2015 (formerly Kerugoya ELC No. 29 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4085/eng@2019-03-28

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