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ELCPartially AllowedBungoma High Court Civil Appeal No 43 of 2006 (referenced suit); ruling on 2nd defendant's application dated 16th January 2018· [2020] KEELC 858 (KLR)

Mary Wanjiru Mwaniki & another v Peter Anjeyo Vohya & another; Paul Kamau Mwangi (Interested Party) [2020] KEELC 858 (KLR)

Environment and Land Court
29 October 2020
BOBoaz N. Olao
457 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a corrective ruling by the Environment and Land Court at Bungoma (Boaz N. Olao J) concerning the 2nd defendant's application dated 16th January 2018, which sought striking out of the suit on two limbs: that it was res judicata Bungoma High Court Civil Appeal No 43 of 2006, and that it contravened Section 18 of the Land Registration Act. In a ruling dated 22nd November 2018 the court had allowed the Interested Party's application of 11th September 2017 but only dealt with the second limb of the 2nd defendant's application. On 20th February 2020, the judge, believing the application had already been dealt with, dismissed it suo motto. Counsel for the 2nd defendant and the 1st defendant drew the court's attention to the fact that the application remained pending. The court found the dismissal was made in error since the res judicata limb had never been decided. The court vacated the orders of 20th February 2020 and reinstated the application, but only in respect of the res judicata limb, listing the matter for directions on 29th October 2020 and directing service on counsel for the plaintiff and the Interested Party. No costs order was made.

Key legal issues

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Whether the suo motto dismissal of 20th February 2020 should stand

Holding

The dismissal was made in error because the application dated 16th January 2018 had not been fully determined in the earlier ruling of 22nd November 2018; only its second limb had been decided

Reasoning

The court perused its ruling of 22nd November 2018, the judgment of Omollo J of 4th November 2014 and its orders of 20th February 2020. Counsel for the 2nd defendant and the 1st defendant confirmed the application was still pending. The judge found the earlier ruling dealt only with the second limb (Section 18 of the Land Registration Act), leaving the res judicata limb undecided, and so corrected the error by vacating the dismissal and reinstating the application on that limb only.

p. 1

Legal principles established

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  • A court may vacate its own orders made in error, including orders issued suo motto

Court orders

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  1. 1.The orders issued on 20th February 2020 dismissing the 2nd defendant's application are vacated
  2. 2.The 2nd defendant's application dated 16th January 2018 is reinstated to hearing but only in respect of the first limb raising the issue of res judicata
  3. 3.Parties to appear on 29th October 2020 for further directions on that application
  4. 4.MR BW'ONCHIRI to serve both MR ONYANDO for the plaintiff and MR KUNDU for the Interested Party

Authorities

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Legislation

  • Land Registration ActSection 18

Cases cited (1)

  • Bungoma High Court Civil Appeal No 43 of 2006
Jurisdiction invoked
Inherent power of the court to correct its own erroneous orders (suo motto orders vacated)

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, "Mary Wanjiru Mwaniki & another v Peter Anjeyo Vohya & another; Paul Kamau Mwangi (Interested Party) [2020] KEELC 858 (KLR)", Case Analysis (2020). Bungoma High Court Civil Appeal No 43 of 2006 (referenced suit); ruling on 2nd defendant's application dated 16th January 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/858/eng@2020-10-29

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