Mbeere Elders Advisory Welfare Group (Ngome) & 4 others v Attorney General & 302 others; Ambrose Kithaka Kariuk & 6048 others (Interested Parties) [2020] KEELC 3716 (KLR)
The bottom line
#Kenya's Embu Land Court cancelled irregularly issued Mwea Settlement Scheme titles, confirming even innocent buyers can lose land obtained through corrupt allocation schemes.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application was not barred by res judicata as the question of execution or implementation of the consent order was not in issue in the previous petitions.
The court examined the judgments in Embu ELC Petition No. 2 of 2016 and Constitutional Petition No. 3 of 2016. Both petitions challenged the demarcation, alienation and allocation of the scheme on constitutional grounds, but neither dealt with the manner of execution or implementation of the partial consent of 12th January 2016. The application, grounded on Section 34 of the Civil Procedure Act, therefore raised issues not directly and substantially in issue previously.
Frivolity and abuse of process
The application was neither frivolous nor an abuse of the court process; the grievances were substantive and the Applicants were not obliged to file a separate suit.
Applying the definition of a frivolous pleading in Trust Bank Limited v Amin & Co Ltd, the court found the grievances neither groundless nor hopeless, and no bad faith or ulterior purpose was demonstrated. Under Section 34 of the Civil Procedure Act, questions arising from execution of a decree are determined by the executing court, not a separate suit, and no respondent sought to treat the proceeding as a suit.
Whether the application was overtaken by events
The implementation of the consent order did not render the application moot because it is the manner of execution that was being challenged.
The 6th and 8th Respondents argued the consent order had been fully implemented and titles issued. The court held that Section 34 of the Civil Procedure Act specifically allows the court to entertain and determine all questions arising from execution of a decree, so full implementation does not defeat an application challenging the manner of that implementation.
Merits – irregular, fraudulent and corrupt allocation
The beneficiaries of allocations exceeding the agreed 5 acres obtained them through dubious means constituting the vitiating factors in Section 26(1)(b) of the Land Registration Act, warranting cancellation and fresh allocation.
Despite evidence of agreed meetings fixing allocations at 5 acres per beneficiary (10 for churches) with random balloting, large allocations went to the 3rd–5th Petitioners, their families, their advocate and other connected individuals. None of the adversely mentioned parties filed replying affidavits or submissions rebutting the allegations, so the court drew adverse inferences and deemed them to have entered a no-contest. Under Section 26(1)(b) of the Land Registration Act, titles acquired through a corrupt scheme are impeachable even without proof of the holder's complicity in fraud.
Appropriate remedies under Section 34
The court granted interpretation and confirmation of the agreed 5-acre formula, cancelled the impugned titles, and directed fresh allocation under the County Commissioner's supervision, while declining the forgery declaration and production of titles.
Prayer 3(a)(b)(c) appropriately clarified the community's distribution formula and secured its intention at the time of the consent. Cancellation and fresh implementation were warranted because the allocation ran contrary to the agreed formula and Article 60(1) of the Constitution. However, supervision was shifted from the Deputy Registrar to the County Commissioner to keep the court neutral, and orders 4 and 5 were declined as unnecessary or unhelpful in the context of Section 34.
Legal principles established
#- Questions arising from the execution, discharge or satisfaction of a decree are determined by the court executing the decree and not by a separate suit; a party aggrieved by wrongful execution of a decree need not file a separate suit.
- Under Section 26(1)(b) of the Land Registration Act, a title need not be impeached on the basis that the holder was party to fraud; a title obtained illegally, unprocedurally or through a corrupt scheme is impeachable even against an innocent holder.
- Where a party fails to rebut adverse allegations despite being given an opportunity, the court is entitled to draw adverse inferences against them.
Court orders
#- 1.The notice of motion dated 24th December 2018 allowed in terms of Order No. 3 (a), (b) and (c); No. 6 and No. 7 thereof
- 2.The court interpreted and confirmed that the Mbeere Community had agreed the Mwea Settlement Scheme land be sub-divided and distributed at five (5) acres per certified beneficiary, allocated randomly by balloting amongst the clans, with public utility parcels excised in a consultative and transparent manner
- 3.The fraudulent and wrongful execution of the court order dated 12th January 2016 in respect of the impugned titles be set aside, the said titles recalled and cancelled, and the land re-distributed amongst freshly certified beneficiaries
- 4.The Deputy Registrar of the court shall not supervise the fresh allocations; the County Commissioner of Embu County or his nominated representative shall oversee or supervise the fresh allocations
- 5.Orders listed as Nos. 4 and 5 of the application declined (declaration of forgery of the petition to the National Land Commission and production of certified copies of titles)
- 6.Each party shall bear his own costs of the application
- Jurisdiction invoked
- Section 34 of the Civil Procedure Act (Cap. 21); Order 5 Rule 17 of the Civil Procedure Rules; Section 18(1) of the Community Land Act, 2016; Section 26(1) of the Land Registration Act; Articles 63(4) and 159(2)(b) & (d) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbeere Elders Advisory Welfare Group (Ngome) & 4 others v Attorney General & 302 others; Ambrose Kithaka Kariuk & 6048 others (Interested Parties) [2020] KEELC 3716 (KLR)", Case Analysis (2020). Embu ELC Petition No. 2 of 2016 (Notice of Motion dated 24th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3716/eng@2020-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.