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)
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
#Key legal issues
#Jurisdiction to vary a consent order by compelling issuance of a provisional title to non-owners
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.
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.
Effect of a consent order on a non-party registered owner
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.
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.
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.The 1st and 2nd third parties' Notice of Motion dated 24th September 2019 is dismissed with costs to be in the cause
- 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.The amendment shall be effected within 21 days from the date of the ruling
- 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.