Daniel Nganga Njoroge & another v Lemutaka ole Ntilalei & 3 others [2020] KEELC 2834 (KLR)
The bottom line
#A Kenyan land court allowed buyers to redraw which parcels their awarded 30 acres would come from after discovering surprise subdivisions, and refused to pause execution or extend time for appeal.
What this practically means
#Executive summary
#Key legal issues
#Review of decree on discovery of new matter
Review allowed - the post-decree subdivision of the parcel was discovery of new and important evidence discovered without remissness at execution stage
The Plaintiffs knew only of the subdivision of 6137 into 23949, 23950 and 23951 at trial. Only upon presentation of the decree for execution did they learn parcel 23952 had been further subdivided, so the Land Registrar could not effect transfers from the mother title. Citing Thugi River Estate and Rose Kaiza, the court held this was discovery of new and important evidence with no remissness on the Plaintiffs' part, warranting review.
Stay of execution pending intended appeal
Refused - the Defendants failed to demonstrate substantial loss or steps to satisfy the decree
Applying Order 42 Rule 6(2) and Butt v Rent Restriction Tribunal, the court noted the Defendants did not deny selling the land to the Plaintiffs and did not show what steps they were taking to partially implement the decree. Offer of security alone was insufficient; substantial loss was not demonstrated.
Extension of time to lodge appeal
Refused - inordinate unexplained delay, no Notice of Appeal, no security and no shown prejudice
Applying s.79G and s.95 of the Civil Procedure Act and the Mwangi v Kenya Airways factors, the court found the Defendants gave no proper reason for failing to instruct their advocate to lodge a Notice of Appeal in time, offered no security, and had not appealed the Land Disputes Tribunal decision whose decree still existed.
Coming on record after judgment
Allowed - consent between outgoing and incoming advocates satisfies Order 9 Rule 9(b)
Order 9 Rule 9 requires an order of the court or a consent for a change of advocate after judgment. A consent had been recorded between the erstwhile advocate and the incoming firm, so the court permitted the new firm to come on record.
Legal principles established
#- Discovery of new and important matter, without remissness by the applicant, justifies review of a decree under Order 45 Rule 1(1).
- A change of advocate after judgment may be effected upon a consent between the outgoing and incoming advocates under Order 9 Rule 9.
Court orders
#- 1.The firm of Messrs Kariuki E & Co. Advocates allowed to come on record for the Defendants.
- 2.The Decree from the Judgement delivered on 19th March, 2019 and Orders issued on 27th March, 2019 reviewed, and the Kajiado Land Registrar directed to excise the Plaintiffs' 30 acres from either KAJIADO/KITENGELA/23949 (8.09 Ha), KAJIADO/KITENGELA/23950 (6.07 Ha) or KAJIADO/KITENGELA/23951 (18.18 Ha) instead of KAJIADO/KITENGELA/6137.
- 3.Prayers Nos. 3, 4, 5, 6 and 7 of the Defendants' Notice of Motion dated 26th July, 2019 dismissed with costs to the Plaintiffs.
- Jurisdiction invoked
- Sections 3, 3A and 80 of the Civil Procedure Act; Order 45 Rule 1(1) and Order 9 Rule 9 of the Civil Procedure Rules; Sections 3, 16 and 19(1) & (2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Nganga Njoroge & another v Lemutaka ole Ntilalei & 3 others [2020] KEELC 2834 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2834/eng@2020-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.