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ELCPartially Allowed· [2020] KEELC 1379 (KLR)

Peter Thuo Murugah v Githinji Waweru [2020] KEELC 1379 (KLR)

Environment and Land Court
17 September 2020
JKJ G Kemei
1,278 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reviewed its own judgment to cancel a land title and split family land equally among eight siblings after finding a customary trust.

What this practically means

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Executive summary

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The Applicant, Peter Thuo Murugah, applied under section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 and Order 51 of the Civil Procedure Rules seeking review of the Court's judgment dated 28 November 2019, in which the Court found that the Respondent, his brother Maina Murugah, held the suit land (LOC3/KARIUA/783) in trust for the Applicant and his siblings. The Applicant contended that prayer (b) of the plaint - seeking determination of the customary trust, cancellation of the Respondent's title and subdivision of the land into 8 equal portions among the siblings - was inadvertently omitted from the orders, rendering the judgment incapable of execution. The Respondent opposed, arguing the judgment was clear and conclusive, that trust as an overriding interest under section 28 of the Land Registration Act need not be noted on the register, that prayer (b) was deemed dismissed, and that no error apparent on the face of the record existed. The Court held that the power to review is a creature of statute, that review is not an appeal in disguise and cannot substitute a view, but that where a judgment rests on an erroneous assumption causing miscarriage of justice the Court may rectify it. Finding that it had proven customary trust in its judgment, the Court held the natural consequence was to grant prayer (b). It allowed the review, declared the registration was in trust for the Applicant, ordered cancellation of the Respondent's title and subdivision into 8 equal portions with titles issued to the eight children of the late Francis Muruga Muthee, ordered each party to bear their own costs of the suit and made no orders on the application costs.

Key legal issues

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01

Whether the judgment of 28/11/19 contained an error apparent on the face of the record

Holding

Yes - having found customary trust proved, the Court failed to grant prayer (b) of the plaint, which was the natural consequence of that finding

Reasoning

The Court re-examined its earlier judgment at paragraphs 44 and 45, where it found the Applicant had proven customary trust. Having made that finding, the failure to grant prayer (b) of the plaint - which sought determination of the trust, cancellation of the title and subdivision - left the judgment incapable of execution and did not resolve the dispute the Court was to adjudicate. This amounted to an error apparent on the face of the record warranting review under section 80 and Order 45.

p. 2
02

The scope of the Court's review jurisdiction under section 80 of the Civil Procedure Act and Order 45

Holding

The Court may review its own judgment on discovery of new matter, mistake or error apparent on the face of the record, or sufficient reason, but review corrects mistakes and does not substitute views

Reasoning

Section 80 empowers an aggrieved person to apply for review of a decree or order from which no appeal has been preferred. Order 45 sets out the operational grounds. The power is statutory, must be conferred by law, and review is not an appeal in disguise. Where an error under mistake resulted in miscarriage of justice, the Court may rectify it, but only to correct a mistake, not to substitute a view.

p. 2

Legal principles established

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  • The power to review is a creature of statute and must be conferred by law
  • Review is not an appeal in disguise; it corrects mistakes but cannot substitute a different view
  • Where a court finds customary trust proved, the natural consequence is to grant consequential relief such as cancellation of title and subdivision

Court orders

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  1. 1.A declaration that the Defendant's registration of land parcel No LOC3/KARIUA/783 was done in trust for the Plaintiff as a son to the late Francis Muruga Muthee
  2. 2.That the Land Registrar be ordered to cancel the Defendant's title and cause the subdivision of the suit land into 8 equal portions and issue titles to the 8 children of the late Francis Muruga Muthee
  3. 3.Each party to meet the cost of their suit
  4. 4.No orders as to costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Civil Procedure RulesOrder 51
  • Land Registration ActSection 28
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 and Order 51 of the Civil Procedure Rules

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, "Peter Thuo Murugah v Githinji Waweru [2020] KEELC 1379 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1379/eng@2020-09-17

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