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ELCAllowedNot stated in the judgment (Notice of Motion dated 31st May 2017)· [2020] KEELC 1934 (KLR)
Mwaniki Kibui v Jane Muthoni Waweru & 5 others [2020] KEELC 1934 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This was a Notice of Motion dated 31st May 2017 brought by the applicant under Order 45 Rule 1(d) of the Civil Procedure Rules seeking review and setting aside of Order 2 of the orders of this Court given on 11th April 2017, which had authorised execution of the decree given on 12th May 2016 and issued on 15th September 2016. The applicant sought substituted orders directing the Deputy Registrar to execute all relevant documents, cancelling the sub-divisions of L.R. INOI/KIAMBURI/172 (parcels 1013–1019) so as to revert the land to the original number, and directing the OCPD Kutus to provide security during surveying. The application was supported by the affidavit of Mwaniki Kibui and opposed by the respondents through a replying affidavit of Karweru Muchemi Charles. The applicant explained that when the decree was presented to the Land Registrar, execution was impossible unless the sub-divisions were first cancelled so that 2 acres could be excised, as explained in the Registrar's letter of 19th May 2017. The respondents opposed, contending that the applicant was seeking to amend the judgment without a proper application and that a Notice of Appeal and a pending Rule 5(2)(b) application in the Court of Appeal meant the matter should await that court. The court applied the review principles in Order 45 CPR, found the Land Registrar's explanation to be a satisfactory explanation constituting sufficient reason for review, held that court orders are not issued in vain, and allowed the application as prayed, with each party bearing their own costs. Judgment was delivered at Kerugoya on 8th May 2020 by E.C. Cherono, ELC Judge.
Key legal issues
#01
Whether the practical impossibility of executing the decree as framed constitutes sufficient reason for review under Order 45 CPR
Holding
Yes. The letter of the District Land Registrar of 19th May 2017 showing that the 2 acres could not practically be excised from the separate sub-divisions was a satisfactory explanation justifying review of the judgment and/or decree.
Reasoning
The court recited the review principles in Order 45 CPR, including discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason. The applicant demonstrated, through the Land Registrar's letter annexed as MK 2, that the earlier order could not be implemented because the two acres could not practically be excised from the individual sub-divided parcels. The court found this a satisfactory explanation and held that orders should not issue in vain.
p. 2
Legal principles established
#- Court orders are not issued in vain; where a decree cannot be practically executed in its present form, that constitutes sufficient reason for review.
- Review may be granted where, upon discovery of new matter, mistake or error apparent on the face of the record, or for any other sufficient reason, an aggrieved party applies without unreasonable delay.
Court orders
#- 1.The Notice of Motion dated 31st May 2017 is allowed as prayed
- 2.Order 2 of the order given on 11th April 2017 is reviewed and set aside and substituted with orders authorising the Deputy Registrar to execute all relevant documents to facilitate due execution of the decree given on 12th May 2016 and issued on 15th September 2016
- 3.The sub-divisions of L.R. INOI/KIAMBURI/172 giving rise to L.R. INOI/KIAMBURI/1013 to 1019 are cancelled reverting the land to L.R. INOI/KIAMBURI/172
- 4.The OCPD Kutus Police to provide security during the surveying process
- 5.Each party to bear his/her own costs
- Jurisdiction invoked
- Order 45 Rule 1(d) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaniki Kibui v Jane Muthoni Waweru & 5 others [2020] KEELC 1934 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 31st May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1934/eng@2020-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.