Mbeere Elders Advisory Welfare Group (Ngome), David Miti Njuki, Njeru Banda, Eston Nyaga Nthiga & Seraphino Ngari v Attorney General & 594 others; Ambrose Kithaka Kariuki & 6047 others (Interested Parties) [2020] KEELC 2043 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to reopen the 2016 Mwea Settlement Scheme land consent, meaning existing titles stand.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application is not res judicata; none of the essential elements were satisfied as the parties and issues in the earlier Embu petitions differed and there was no prayer for review there.
The parties in Embu ELC Petition No. 3 of 2016 differed from the Applicants; the Petitioner there sued for the Mihiriga Kenda of Kirinyaga. The judgment in Embu ELC Petition No. 2 of 2016 did not deal with review, variation or setting aside of the consent order, and the court there had itself held the matters were not res judicata. Hence Section 7 of the Civil Procedure Act was not attracted.
Whether the application was overtaken by events
No; the ruling of 6th February 2020 did not set aside or review the consent order, so there was no legal basis for the submission.
The 6th February 2020 ruling arose from a motion by the 235th–249th Interested Parties challenging implementation of the consent order; it contained no prayer for review or setting aside and the court did not disturb the consent. Accordingly, the submission that the application had been overtaken by events was unsupported and the issue was answered in the negative.
Frivolity and abuse of process
The application was neither frivolous nor an abuse of court process.
Applying the definitions in Bullen & Leake and Jacobs as adopted in Trust Bank Limited v Amin & Company Ltd, the court found no material showing the application was groundless, fanciful, a misuse of court process or actuated by improper motives. The preliminary objections based on res judicata, overtaking by events and frivolity all failed.
Review under Section 80 CPA and Order 45 Rule 1
No case for review was made out: no mutual mistake, no error apparent on the face of the record, no other sufficient reason, and inordinate unexplained delay.
Assuming the suit land's status had changed from community to public land, that fact was known to the Respondents, not a common mistake. The sub-county selection committee point failed because the current Section 134 of the Land Act came into force on 21st September 2016, after the consent, and the NLC had then appointed a selection committee. Community-led negotiation was permissible, and the Applicants' community was allocated a 30% share. Delay of over three years defeated the application.
Consequential orders for cancellation of titles and fresh allocation
Refused as wholly dependent on the failed review application.
Since the Applicants failed to establish grounds for review or setting aside of the consent order of 12th January 2016, the consequential reliefs for cancellation of titles issued under that consent and a fresh allocation process could not stand. The court disposed of the entire motion by dismissal.
Costs
Each party to bear its own costs given the nature of the proceedings and ongoing litigation.
Although costs ordinarily follow the event under the proviso to Section 27 of the Civil Procedure Act, the court, considering the nature of the proceedings and the fact that litigation among the parties had not concluded, directed that each party bear its own costs of the application.
Legal principles established
#- To vitiate a consent, the mistake must be a common mistake by all concerned parties; a unilateral mistake will not normally suffice
- An application for review must be brought without unreasonable delay
- Communities negotiating and agreeing on allocation of land is consistent with constitutionally encouraged alternative dispute resolution
- Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless the court directs otherwise
Court orders
#- 1.The Applicants' notice of motion dated 28th October 2019 is dismissed in its entirety
- 2.Each party shall bear his own costs of the application
- Jurisdiction invoked
- Sections 1A, 3A and 80 of the Civil Procedure Act (Cap. 21) and Order 45 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbeere Elders Advisory Welfare Group (Ngome), David Miti Njuki, Njeru Banda, Eston Nyaga Nthiga & Seraphino Ngari v Attorney General & 594 others; Ambrose Kithaka Kariuki & 6047 others (Interested Parties) [2020] KEELC 2043 (KLR)", Case Analysis (2020). Embu ELC Petition No. 3 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2043/eng@2020-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.