Peter Wafula Welimo – A Legal Representative of the Estate of Welimo Mukati v Mukhwana Walucho Kituyi [2020] KEELC 950 (KLR)
The bottom line
#The High Court dismissed a bid to cancel a land title through judicial review, confirming that land ownership disputes must be fought in a proper civil suit.
What this practically means
#Executive summary
#Key legal issues
#Whether a Judicial Review court can order cancellation of a title and rectification of the register
No. The Judicial Review jurisdiction is limited to interrogating the legality, rationality or propriety of decisions; ownership disputes must be ventilated in an ordinary civil suit, and the orders previously made by Mbito J were now spent.
The court held that prayer 5 would require it to determine ownership of the suit land, a matter outside Judicial Review. The decree that followed Mbito J's judgment only quashed the Tribunal's award and prohibited re-hearing; granting the orders sought would amend that decree and import a remedy not granted. The Applicant should have filed a substantive civil suit.
Effect of quashing an award on registration made pursuant to it
The Respondent's registration of the suit land pursuant to a quashed Tribunal award, in violation of a consent staying execution, was fraudulent, unlawful, un-procedural, an abuse of court process and blatantly contemptuous, but the remedy still had to be pursued in a proper civil suit.
Mbito J had quashed the Tribunal's award and all consequential orders. Notwithstanding the consent of 29th June 2000 staying execution, the Respondent presented a Vesting Order to the Land Registrar, was registered as proprietor, and obtained a title deed on 9th August 2005. The court condemned this conduct but held the remedies lay elsewhere.
Whether Section 34 of the Civil Procedure Act (execution court determines all questions) could ground the relief
The argument failed because the decree dated 16th September 2003 did not provide for cancellation of title or rectification of the register; granting the orders would amount to amending that decree.
The full decree following Mbito J's judgment allowed the application, quashed the Tribunal's award and consequential orders, prohibited the Tribunal from re-hearing the claim, and awarded costs. It made no provision for cancelling title No East Bukusu/South Nalondo/1036. Even the court's inherent jurisdiction could not be exercised arbitrarily.
Limitation of execution of the judgment
Even if the court were minded to enforce Mbito J's judgment, the decree could not be executed after 12 years under Section 4(4) of the Limitation of Actions Act.
The decree was issued on 16th September 2003 and by the time of the application over 12 years had elapsed. The Limitation of Actions Act bars actions upon a judgment after 12 years, so the decree could no longer be executed.
Whether the Aneriko Simiyu v Redempta Simati line of authorities assisted the Applicant
Distinguished. Sergon J was correcting a Vesting Order issued in error by the Deputy Registrar and was dealing with a civil suit in which ownership was in dispute; here the decree was not in error and no civil suit was before the court.
The Court of Appeal upheld Sergon J's review as within review jurisdiction per National Bank of Kenya v Ndungu Njau because the Vesting Order had been issued in error and the matter was a civil suit determining ownership. Neither condition obtained in this matter.
Legal principles established
#- Once an order is quashed, it ceases to have any legal effect.
- Judicial review does not determine ownership of disputed property; it only interrogates the process by which decisions were made, leaving merits of disputes to ordinary civil suits.
- An order cancelling title and rectifying a register cannot be granted on the basis of an application; it requires a substantive civil suit.
- A court cannot by review import into a decree a remedy that was not granted by the judgment, nor may inherent jurisdiction be exercised arbitrarily or at the whims of the Court.
- An action may not be brought upon a judgment after the end of 12 years (Section 4(4), Limitation of Actions Act).
Court orders
#- 1.The Notice of Motion dated 2nd July 2020 and filed on 3rd July 2020 was dismissed with no orders as to costs
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act; Orders 45 Rule 1 and 7, Order 24 Rule 1, 4(1) and (2) and Order 51 of the Civil Procedure Rules (review and reinstatement jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Karissa v Juma & 3 others (Environment and Land Case E038 of 2023) [2025] KEELC 3137 (KLR)[2025] KEELC 3137 (KLR)2 Apr 2025applied
- Tallam & 4 others v Kibingor[2023] KEELC 19997 (KLR)26 Sept 2023applied
- Kivala v Gavardi (Suing through Attorney Turini Renato) (Environment & Land Case 41 of 2009) [2023] KEELC 85 (KLR)[2023] KEELC 85 (KLR)19 Jan 2023
- Kivala v Gavardi (Suing through Attorney Turini Renato) (Environment & Land Case 41 of 2009) [2023] KEELC 85 (KLR)[2023] KEELC 85 (KLR)19 Jan 2023
Cite this brief
#Cite this brief
Caselaw, "Peter Wafula Welimo – A Legal Representative of the Estate of Welimo Mukati v Mukhwana Walucho Kituyi [2020] KEELC 950 (KLR)", Case Analysis (2020). Bungoma High Court Miscellaneous Application No 90 of 2011 (Notice of Motion dated 2nd July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/950/eng@2020-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.