Republic v Director of Survey of Kenya & 2 others; Kiambu Nyakinyua Farmers Co. Ltd(Interested Party); Elijah Njuguna Mutitu & 1697 others(Proposed Interested Parties); Ex Parte Wairimu Ngigi & 30 others [2020] KEELC 3373 (KLR)
The bottom line
#The court refused to cancel thousands of land titles because the earlier case was already finished, telling the members to file a fresh lawsuit.
What this practically means
#Executive summary
#Key legal issues
#Whether the court could grant the reliefs sought in the application dated 7th December 2017
The application was dismissed; the reliefs sought were not available within the concluded judicial review and the court was functus officio as regards execution of the HCCC No. 2286 of 1993 decree
The judicial review was fully disposed of by the mandamus order of 15th February 2011 and the consent order of 5th October 2011. The court is confined under Order 53 to certiorari, mandamus and prohibition, and the orders sought (cancellation of titles, fresh subdivision, prohibition of dealings) are substantive reliefs amounting to new causes of action requiring a fresh suit and viva voce evidence. Execution of the 2003 decree lies with the court that issued it.
Whether titles already issued could be cancelled
No - titles issued in furtherance of the consent order cannot be cancelled absent established valid reason, and third-party title holders must be heard
Thousands of titles had issued to interested parties, some of whom had occupied and developed their parcels. The consent order of 5th October 2011 expressly permitted continued issuance of titles, and Meoli J had already declined a similar cancellation request on 25th November 2016. No survey records or maps were produced to impugn the survey or the titles.
Whether the conservatory orders issued ex parte should stand
They were unsustainable and were vacated and discharged
Since the substantive application failed, the interim conservatory orders protecting the suit land could not survive. They were granted pending hearing of an application which the court found could not be granted.
Legal principles established
#- A court becomes functus officio once it fully determines a judicial review application and cannot entertain fresh substantive reliefs or supervise execution of a decree in another suit
- Under Order 53 of the Civil Procedure Rules the court on judicial review is confined to certiorari, mandamus and prohibition
- Cancellation of titles held by third parties requires evidence that the titles were illegally, irregularly or fraudulently procured
Court orders
#- 1.The applicants' Notice of Motion dated 7th December 2017 is dismissed
- 2.The conservatory orders issued ex parte are vacated and discharged
- 3.Each party to bear their own costs of the application
- Jurisdiction invoked
- Order 53 Rules 1 and 3(4) of the Civil Procedure Rules (judicial review); Sections 3, 3A and 3B of the Civil Procedure Act and Order 51 Rule 1 for the application under determination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director of Survey of Kenya & 2 others; Kiambu Nyakinyua Farmers Co. Ltd(Interested Party); Elijah Njuguna Mutitu & 1697 others(Proposed Interested Parties); Ex Parte Wairimu Ngigi & 30 others [2020] KEELC 3373 (KLR)", Case Analysis (2020). Judicial Review Application arising from Nairobi HCCC No. 2286 of 1993 (Notice of Motion dated 7th December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3373/eng@2020-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.