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ELCAllowedNotice of Motion dated 13th February 2019 (arising from Originating Summons dated 1st August 2016)· [2020] KEELC 2110 (KLR)

Peter Waweru Wairi & 2 others v Peter Kibunja Nyaga & 2 others;Paul Ngigi Nyagah(Interested Party) [2020] KEELC 2110 (KLR)

Environment and Land Court
10 March 2020
MOM.C Oundo
1,462 words in judgment
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The bottom line

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A Kenyan court can order land registered in a non-party's name transferred to you if the registration happened after judgment to defeat your decree.

What this practically means

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Executive summary

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The Applicants, who had successfully proved adverse possession over parcels Nyandarua/Muruaki/4044 and 4052 in an Originating Summons decided on 31st July 2018, sought review of the decree under Order 45 Rules 1 and 2 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act. The decree directed transfer of specified acreages, with the Deputy Registrar empowered to execute transfer documents on default. During execution, the Deputy Registrar was unable to effect transfer because the subdivided parcel Nyandarua/Muruaki/4785 had been registered in the name of Paul Ngigi Nyagah, a relative of the Respondents who was not a party to the suit. The Applicants' pre-suit official search had shown the 3rd Respondent, Nyaga Kinyanjui, as registered proprietor of the parent parcel. The application was unopposed despite proper service, and only the Applicant filed submissions. Relying on the maxim that equity suffers no wrong without a remedy, and on the discovery of new and important matter in the Green Card (annexture NNW3), Oundo J held that review was proper since the registration of the non-party was not within the Applicants' knowledge when the decree issued. The court found it immaterial to inquire into the legality of that registration, the judgment having precluded any other person from claiming ownership by registration. The application was allowed: the decree was reviewed to include transfer of two acres of Nyandarua/Muruaki/4785 to the Plaintiff, the Deputy Registrar was directed to execute the necessary transfer documents, and costs were awarded at a lower scale as the suit was undefended.

Key legal issues

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01

Whether discovery of new evidence justified review under Order 45

Holding

Review was proper because the registration of Paul Ngigi Nyagah as proprietor of the subdivided parcel was new evidence not within the Applicants' knowledge at the time of the original decree

Reasoning

The official search conducted before filing showed the 3rd Respondent Nyaga Kinyanjui as registered proprietor of Nyandarua/Muruaki/4052. The Green Card later produced (annexture NNW3) revealed that Paul Ngigi Nyagah, a relative of the Respondents who was not a party to the suit, had been registered as proprietor of the subdivided parcel Nyandarua/Muruaki/4785, preventing execution of the decree. This constituted discovery of new and important matter under Order 45 Rule 1(1).

p. 3
02

Whether the court could order transfer of land registered in the name of a non-party

Holding

Yes; the court reviewed the decree to include transfer of the two acres despite registration in the name of Paul Ngigi Nyagah, noting he ought to have been enjoined as a Defendant

Reasoning

The court had already determined that the Applicants were entitled to ownership by adverse possession of the land accruing from the subdivision of Nyandarua/Muruaki/4052. The subsequent registration of a non-party relative was treated as an attempt to defeat the judgment; the court declined to delve into the legality of that registration, holding it immaterial, and amended the decree to capture the subdivided parcel, directing the Deputy Registrar to execute the transfer.

p. 3

Legal principles established

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  • A court's judgment on ownership precludes any other person from claiming ownership by way of registration
  • Review lies upon discovery of new and important matter or evidence which after due diligence was not within the applicant's knowledge or could not be produced when the decree was passed

Court orders

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  1. 1.The Decree issued on 31st July 2018 is reviewed so as to include an additional order that two (2) acres of land parcel Nyandarua/Muruaki/4052 (closed for subdivision into Nyandarua/Muruaki/4785) be and is hereby transferred to the Plaintiff even though registered in the name of Paul Ngigi Nyagah
  2. 2.The Deputy Registrar is directed to execute the transfer forms and all documents necessary to effect the transfer
  3. 3.Costs at a lower scale since the suit was undefended

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1 & 2
  • Land Registration ActSection 26

Cases cited (2)

  • Olympic Company Trading Ltd & Another v Said Mohamed & 4 Others
    [2014] eKLR
  • Macharia Mwangi Muna & 87 Others v Davidson Mwangi Kagiri
    [2014] eKLR
Jurisdiction invoked
Order 45 Rule 1 & 2 of the Civil Procedure Rules; Section 80 of the Civil Procedure Act (Cap. 21)

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 Waweru Wairi & 2 others v Peter Kibunja Nyaga & 2 others;Paul Ngigi Nyagah(Interested Party) [2020] KEELC 2110 (KLR)", Case Analysis (2020). Notice of Motion dated 13th February 2019 (arising from Originating Summons dated 1st August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2110/eng@2020-03-10

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