Geoffrey Karongo Munga & 9 others v Geoffrey Njuguna Munga [2020] KEELC 2698 (KLR)
The bottom line
#The High Court dismissed a bid to reopen a family land dispute, confirming the parties' agreed settlement and the resulting resurvey stand as final.
What this practically means
#Executive summary
#Key legal issues
#Whether the lower court lacked jurisdiction to render the judgment of 20th April 2016
The lower court had jurisdiction; it was not rehearing the original suit but supervising implementation of the Land Registrar's decision as directed by the High Court, and the conservatory orders concerning magistrates' jurisdiction had been overturned by the Court of Appeal.
The court reasoned that the matter was filed and determined before the establishment of the Environment and Land Court, and the referral back was solely for supervision of implementation of the Land Registrar's ruling. Further, the High Court at Malindi decision restricting magistrates' jurisdiction over environment and land disputes had been overturned by the Court of Appeal. Jurisdiction was therefore not wanting, and the judgment could not be impugned as a nullity.
Whether the resurvey complied with the consent order
The resurvey by the District Land Registrar and District Land Surveyor complied with clause 5(a) and (c); they took ground measurements and established the access road shown on the Registry Index Map without altering acreages.
The court found that the purpose of the resurvey was to establish on the ground the access road that existed on the Registry Index Map but not on the ground. The surveyors were not expected to conduct a fresh subdivision in accordance with the 1983 family agreement, as the respondent's surveyor had assumed. The road with a bend near Plot No. 1817 was the lawful road, and Plot No. 1817 could not be interfered with.
Whether the demolition of the respondent's fence and gate pillar was lawful
The demolition was lawful because the structures stood on the established access road, and the lower court had power under the consent order to order their removal.
The respondent failed to demonstrate that the acreage of Plot No. 2068 was reduced by the resurvey. The fence and gate pillar were found standing in the middle of the established road and could not qualify as protected developments under the consent order. The lower court therefore had power under the consent order to order their removal, and did so.
Legal principles established
#- A consent order can only be reviewed or set aside by another consent of the parties.
- Where a superior court refers a matter back to a subordinate court to supervise implementation of its orders, the subordinate court has jurisdiction to carry out that supervision notwithstanding conservatory orders made elsewhere concerning its jurisdiction, particularly where such orders have been overturned on appeal.
- A Land Registrar and District Surveyor conducting a resurvey under court order must establish on the ground the access road shown on the Registry Index Map without interfering with the boundaries, acreages or lawful developments of existing parcels.
Court orders
#- 1.The Notice of Motion application dated 27th March 2019 is dismissed
- 2.Costs of the application awarded to the appellants
- Jurisdiction invoked
- Appellate/supervisory jurisdiction over Kiambu CMCC No. 92 of 2010 pursuant to the consent order of 5th March, 2015 referring the matter back to the lower court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geoffrey Karongo Munga & 9 others v Geoffrey Njuguna Munga [2020] KEELC 2698 (KLR)", Case Analysis (2020). High Court Civil Appeal No. 608 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2698/eng@2020-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.