Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2020] KEELC 247 (KLR)

Margaret Wangui Gatero Suing as the Administrator of the Estate of Grace Wambui Gatero, Deceased v Felix Mureithi; Paul Mutua Makenzi & 2 others (Third Party) [2020] KEELC 247 (KLR)

Environment and Land Court
17 December 2020
1,837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that parties to a land dispute cannot use a consent order to strip a registered owner of property if that owner never agreed or defended the case.

What this practically means

#

Executive summary

#
The plaintiff, defendant and 1st and 2nd third parties recorded a consent on 30th October 2014 (variously referred to as the consent of 15th March 2015) under which the plaintiff was to receive vacant possession and transfer of L.R No. 14870/411 from the third parties in exchange for L.R No. 14870/404. The 1st and 2nd third parties could not comply because the property was registered in the name of Haile Ikubu, the 3rd third party, who was not a party to the consent. They filed a Notice of Motion dated 24th September 2019 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules seeking variation of the consent so that the Registrar of Titles would issue a provisional title and the Deputy Registrar of the court would execute the transfer in favour of the plaintiff. The application was unopposed. After the 3rd third party was joined on 9th March 2020 and served with a third party notice but did not enter appearance, the court heard the application. Okong'o J held that the court lacked jurisdiction to grant the orders: the applicants were not the registered owners, there is a laid-down procedure for a provisional title requiring application by the owner, and no prior order directed the registered owner to execute a transfer that court officers could enforce. The court could not endorse a consent affecting a non-party's interest; due process required that the claim against him be proved. The application was dismissed with costs in the cause, and the court ordered the plaintiff to further amend her plaint within 21 days to reflect the third-party designations.

Key legal issues

#
01

Jurisdiction to vary a consent order by compelling issuance of a provisional title to non-owners

Holding

The court declined jurisdiction, holding the application sought to bypass the proper statutory procedure for a provisional title, which must be sought by the owner or his representative.

Reasoning

The 1st and 2nd third parties were never registered owners of L.R No. 14870/411, which remained registered in the name of the 3rd third party. Granting the orders would compel the Registrar of Titles to issue a provisional title to a non-owner and compel a court officer to execute a transfer on behalf of the registered owner without any proper basis or prior court order, merely because the parties had agreed.

p. 2
02

Effect of a consent order on a non-party registered owner

Holding

A consent cannot bind or affect the interests of the 3rd third party, who was not party to the consent and had not entered appearance despite being joined on 9th March 2020 and served with a third party notice.

Reasoning

The court recognized the parties' freedom to compromise inter se but held that the claim against the unrepresented third party had to be proved through due process. The court could not determine the 1st and 2nd third parties' claim against the 3rd third party through a consent to which he was not a party.

p. 2

Legal principles established

#
  • A court cannot endorse a consent between some parties that would affect the interest of a registered owner who was not a party to the consent and has not entered appearance; due process must be followed and the claim against such a party must be proved.
  • Parties to a suit may compromise their claims against each other, but a claim against a third party who has not entered appearance must be proved, not compromised by consent.

Court orders

#
  1. 1.The 1st and 2nd third parties' Notice of Motion dated 24th September 2019 is dismissed with costs to be in the cause
  2. 2.On the court's own motion, the plaintiff shall further amend her amended plaint dated 12th February 2019 to indicate Paul Mutua Makenzi and Margaret Makenzi as 1st and 2nd third parties respectively and Haile Ikubu as 3rd third party
  3. 3.The amendment shall be effected within 21 days from the date of the ruling

Authorities

#

Legislation

  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 1A
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 1B
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 3A
  • Civil Procedure RulesOrder 1 rule 19
  • Civil Procedure RulesOrder 51
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) and Order 51 of the Civil Procedure Rules; inherent jurisdiction of the court over its own suit

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Margaret Wangui Gatero Suing as the Administrator of the Estate of Grace Wambui Gatero, Deceased v Felix Mureithi; Paul Mutua Makenzi & 2 others (Third Party) [2020] KEELC 247 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/247/eng@2020-12-17

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