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ELCAllowedTigania PM ELC No. 6 of 2017 (Appeal)· [2020] KEELC 119 (KLR)

Priscilla Murungi Njogu v John Phares Njeru & 4 others [2020] KEELC 119 (KLR)

Environment and Land Court
18 November 2020
1,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a land fraud suit, confirming that once land adjudication ends and titles issue, parties go to ordinary courts, not adjudication committees.

What this practically means

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Executive summary

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The appellant sued at Tigania in TIGANIA PM ELC NO 6 OF 2017 seeking rectification of the land register so that parcel No. 7870 Mbeu 1 would revert to the name of her deceased mother, Savina Ntue Wamwirichia, together with general damages, alleging fraudulent collusion to transfer the land to the 2nd and 3rd respondents. The respondents pleaded that the land was gifted to the 2nd and 3rd respondents by their grandmother, Gladys Ntue, in about 2012 and registered in their joint names upon issuance of titles in 2017. The trial magistrate, on written submissions directed under section 26(3) of the Land Consolidation Act and section 29(1) of the Land Adjudication Act, ruled on 28/11/2019 that the appellant had by-passed the statutory adjudication dispute-resolution procedures and struck out the suit. On appeal, the Environment and Land Court (Lucy N. Mbugua, ELC Judge) held that since adjudication had been completed and titles issued, the dispute-resolution mechanisms under the adjudication statutes were no longer applicable, and it would be an exercise in futility to send litigants back to a process which no longer exists. The claim of fraudulent interference with registration, and the defence of a gift, were issues for the ordinary courts. The court found the striking out premature, set aside the ruling of 28/11/2019, reinstated the suit, ordered each party to bear their own costs, and remitted the file to the trial court for determination.

Key legal issues

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01

Whether the adjudication dispute-resolution mechanisms under Cap 283 and Cap 284 remained applicable to the dispute

Holding

They were not applicable; the adjudication process had ended, titles having been issued, so the trial court erred in holding that it lacked jurisdiction.

Reasoning

Though no copies of titles were availed, both parties contended the suit parcels were registered, with the respondents giving 2017 as the year of registration. That was sufficient to find the matter was no longer within the adjudication process. Once adjudication becomes final, the statutory dispute-resolution mechanisms cease, and it would be futile to send litigants back to a process that no longer exists.

p. 2
02

Whether the dispute over fraudulent interference with the registration fell within the ordinary courts

Holding

Yes; the claim of fraudulent interference with registration and the defence of a gift inter vivos are issues well within the ambit of the ordinary courts.

Reasoning

Neither party was challenging the registration itself in the name of Ntue (Savina or Gladys). The appellant alleged fraudulent interference with the registration while the respondents claimed a transfer made with the appellant's knowledge. Such disputes do not concern ascertainment of rights and interests in land within the adjudication statutes and are justiciable in the ordinary courts; striking out the suit was therefore premature.

p. 2
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Whether the trial court erred in striking out the suit

Holding

Yes, it was premature to strike out the suit; the ruling was set aside and the suit reinstated.

Reasoning

The trial magistrate found the appellant had by-passed statutory adjudication procedures, but since the adjudication process had concluded and titles issued, the statutory structures were no longer available. The appellant's grievance, based on alleged fraudulent registration, could not be ventilated under those statutes, so the suit should not have been struck off.

p. 2

Legal principles established

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  • Once an adjudication register in an adjudication section has become final, the dispute resolution mechanism under the Land Adjudication Act ceases.
  • It would be futile to send litigants back to adjudication dispute-resolution processes that no longer exist once adjudication is finalized and titles issued.
  • Courts can handle disputes arising in the adjudication arena as long as such disputes do not fall within the ambit of ascertainment of rights and interests in land under Cap 283 and Cap 284.

Court orders

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  1. 1.The ruling delivered on 28/11/2019 is set aside
  2. 2.The suit in Tigania PM ELC No. 6 OF 2017 is reinstated
  3. 3.Each party to bear their own costs of this suit
  4. 4.A copy of this judgment is to be placed in the original file, which file is then to be transmitted back to the trial court for determination

Authorities

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Legislation

  • Land Consolidation Actsection 26(3)
  • Land Adjudication Actsection 29(1)
  • Land Adjudication Actsection 30
  • Land Registration Act No. 3 of 2012section 80
  • Constitution of KenyaArticle 50(1)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • Fredrick Tureisa Lekesike v Iman Dahir & 3 others
    [2019] eKLR
  • Stephen Kirimi M'Rinturi v Land Adjudication and Settlements Officer – Igembe District & 3 Others; Peter Kumbu Kimunya & Another (Interested Parties)
    [2020] eKLR
On appeal from
Tigania Principal Magistrate's Court (PM ELC)
TIGANIA PM ELC NO 6 OF 2017
Jurisdiction invoked
First appeal to the Environment and Land Court from the ruling of the Magistrate's Court in TIGANIA PM ELC NO 6 OF 2017

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, "Priscilla Murungi Njogu v John Phares Njeru & 4 others [2020] KEELC 119 (KLR)", Case Analysis (2020). Tigania PM ELC No. 6 of 2017 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/119/eng@2020-11-18

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