Raphael Mukuruma Mukuria v Yiampoyo Eme Kuyu Ogutu & 2 others [2020] KEELC 3799 (KLR)

Environment and Land Court

3 February 2020

COCHRISTINE OCHIENG

1,142 words in judgment

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The bottom line

A Kajiado court changed its earlier ruling after discovering the deceased's widow concealed a buyer's agreed land interest, and lifted a blocking ban on the title.

What this practically means

Executive summary

This was a review application by the Plaintiff under Order 45 Rules 1 and 2 of the Civil Procedure Rules, sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act, and section 78 of the Land Registration Act, seeking review of the Court's ruling of 11th April, 2018 which had directed release of the title deed for Kajiado/Kaputiei South/2199 to the Defendants (widows of the late Kuya Ole Ogutu), and seeking removal of an inhibition registered against the parcel. The Defendants opposed, insisting the title be released and alleging contempt. The court framed two issues: whether to review and vary the order on release of the title, and whether to lift the inhibition. On the first, the court found the deceased had consented to transfer a portion of the land to the Plaintiff but died before implementation, and that the widows, in obtaining letters of administration intestate in Kajiado CM C Succession Cause No. 128 of 2016, failed to take account of the Plaintiff's interest and did not divulge that fact when the ruling was made; the Plaintiff discovered this only after the ruling. Applying Muyodi v ICDC and Nyamogo & Nyamogo v Kogo, the court held discovery of new and important material is a ground for review, reviewed its ruling, and directed that the title be retained by the Plaintiff's Counsel pending transfer of a portion per the consent orders of 11th July, 2013 and 12th March, 2014. On the inhibition, the court held inhibitions are entered for a particular period and can be removed, and directed the Land Registrar, Kajiado to remove the inhibition to enable the Plaintiff obtain the 80 acres to be hived off the parcel. A stay of execution was refused. The application was allowed with costs in the cause.

Key legal issues

Whether the ruling of 11th April, 2018 should be reviewed on the ground of discovery of new and important matter

Holding

Application for review allowed; title to be retained by Plaintiff's Counsel pending transfer of a portion to the Plaintiff

Reasoning

The deceased had consented to transfer a portion of the land to the Plaintiff, but the consent order was not implemented as the deceased passed on. The widows obtained letters of administration intestate in Kajiado CM C Succession Cause No. 128 of 2016 without taking into account the Plaintiff's interest, and did not divulge this to the Court when the ruling was made. The Plaintiff discovered these facts only after delivery of the ruling. The court associated itself with Muyodi v ICDC and held that discovery of new and important material constitutes a ground for review.

p. 2

Whether the inhibition registered against the parcel should be removed

Holding

The Land Registrar, Kajiado directed to remove the inhibition

Reasoning

There was a court order granting the Plaintiff an interest in the land, and the Defendants' registration of the inhibition prevented implementation of that order. Sections 68 and 70 of the Land Registration Act provide for registration and removal of inhibitions. As the Defendants are legal representatives of the deceased's estate, the court saw no reason why they should inhibit the land to block implementation of a court order, and directed the Land Registrar to remove it so the Plaintiff could obtain the 80 acres.

p. 2

Legal principles established

An error apparent on the face of the record is one where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions; discovery of new and important matter is a ground for review.
Inhibitions registered under the Land Registration Act are entered for a particular period and can be removed, including where they block implementation of a court order.

Court orders

1.Review of the Court's ruling of 11th April, 2018 on release of the title deed
2.Title for Kajiado/Kaputiei South/2199 to be retained by the Plaintiff's Counsel pending transfer of a portion of the land to the Plaintiff as per the terms of the consent Order entered on 11th July, 2013 and 12th March, 2014
3.The Land Registrar, Kajiado to remove the inhibition on land parcel Kajiado/Kaputiei South/2199 to enable the Plaintiff obtain the 80 acres of land to be hived off the parcel
4.Refusal of an order for stay of execution of the ruling
5.Costs to be in the cause

Authorities

Legislation

Civil Procedure ActSections 1A, 1B, 3, 3A and 80
Civil Procedure RulesOrder 45 Rules 1 and 2
Land Registration ActSections 68, 70 and 78

Cases cited (2)

MUYODI v INDUSTRIAL AND COMMERCIAL DEVELOPMENT CORPORATION AND ANOTHER
EALR (2006) EA 243
Nyamogo & Nyamogo -vs- Kogo
(2001) EA 174

Jurisdiction invoked: Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act; Order 45 Rules 1 and 2 of the Civil Procedure Rules; Section 78 of the Land Registration Act

Key timeline

Practical implications

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Cite this brief

Caselaw, "Raphael Mukuruma Mukuria v Yiampoyo Eme Kuyu Ogutu & 2 others [2020] KEELC 3799 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3799/eng@2020-02-03

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