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ELCPartially AllowedNot stated in the judgment (chamber summons application dated 01st August, 2019)· [2020] KEELC 3903 (KLR)

Charles Mutuku v Christopher Nzioki & another [2020] KEELC 3903 (KLR)

Environment and Land Court
27 January 2020
CMC.G. Mbogo
4,415 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Makueni land court refused to undo an earlier survey ruling, saying grievances belong on appeal, but added the National Land Commission and Lands Ministry to the case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni (Mbogo, J) on the Plaintiff's chamber summons application dated 1st August 2019. The Plaintiff sought stay of execution of the court's orders of 21st February 2019 adopting a survey report by the Makueni County Surveyor; review and setting aside of that ruling; joinder of the National Land Commission and the Ministry of Lands & Physical Planning as interested parties; expungement of the County Surveyor's report of 17th January 2017; and an order for a fresh survey. The 1st and 2nd Defendants opposed, arguing that no ground for review was established, that the application was a second bite at the cherry, and that the proposed interested parties were unnecessary in a dispute between two private landowners. The court adopted the Plaintiff's three issues. On review, it held that the Applicant had shown no error apparent on the face of the record, no discovery of new and important matter, and no sufficient reason; his complaints disclosed grounds for appeal, not review, and he should have appealed instead. The prayers for stay, review, expungement and a fresh survey consequently failed. On joinder, the court held that as the National Land Commission manages public land and the Ministry is custodian of land records, their presence was necessary for effectual and complete adjudication, and prayers 3 and 4 were granted. The court observed the Applicant should consider whether to enjoin them also as defendants or plaintiffs. Owing to partial success, each party was ordered to bear their own costs.

Key legal issues

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01

Whether the Court should review its ruling of 21st February 2019

Holding

Review refused; the Applicant established no ground under Section 80 of the Civil Procedure Act and Order 45 Rule 1

Reasoning

The court found that the Applicant's complaint - non-participation in the survey and alleged failure to consider the PDP - amounted to dissatisfaction with the court's decision, not a ground for review. No new and important matter was discovered, no error apparent on the face of the record was shown, and no sufficient reason analogous to those grounds was advanced. The proper remedy, if the court erred, was an appeal.

p. 5
02

Whether the National Land Commission and the Ministry of Lands & Physical Planning should be enjoined as interested parties

Holding

Granted; their presence is necessary for effectual and complete adjudication

Reasoning

The court noted the National Land Commission's constitutional mandate to manage public land on behalf of the National and County Governments and to advise on registration of title, and the Ministry's role as custodian of government land records. Given the dispute concerns public land and conflicting survey reports, their presence was held necessary for complete settlement of the issues.

p. 5
03

Whether a fresh survey should be ordered

Holding

Refused; it is consequential on the failed review prayer

Reasoning

The prayer for a fresh survey was tied to the success of the review and setting aside of the County Surveyor's report. Since review failed, the foundation for ordering a fresh survey fell away and the court declined to order one.

p. 5

Legal principles established

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  • An erroneous conclusion of law or evidence is a ground for appeal, not for review
  • A party seeking joinder of an interested party must demonstrate a direct interest in the subject matter
  • The joinder test is whether the presence of the party is necessary to enable the court effectually and completely adjudicate on all questions in the suit

Court orders

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  1. 1.The National Land Commission is enjoined in these proceedings as the 1st Interested Party
  2. 2.The Ministry of Lands & Physical Planning is enjoined in these proceedings as the 2nd Interested Party
  3. 3.Each party to bear their own costs
  4. 4.The Applicant to further make a determination as to whether or not to enjoin the two interested parties as defendants or plaintiffs in the matter

Authorities

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Legislation

  • National Land Commission ActSection 5(2)(b)
  • Civil Procedure Act, 2010Sections 1A, 1B and 80
  • Civil Procedure Rules, 2010Order 1 Rules 10(2) and 14; Order 10 Rule 11; Order 45 Rule 1

Cases cited (13)

  • Pancras T. Swai v. Kenya Breweries Limited
    [2014] eKLR
  • Francis Origo and Another vs. Jacob Kumali Mungala
    C.A Civil Appeal No.149 of 2001 (unreported)
  • Abas Belinda vs. Fredrick Kangamu and another
    [1963] E.A 557
  • Francis Njoroge vs. Stephen Maina Kamore
    [2018] eKLR
  • Tokessi Mambili and others vs. Simon Litsang
  • Nyamongo & Nyamongo vs. Kogo
    [2001] EA 170
  • Sadar Mohamed vs. Charan Singh and Another
    [1959] EA 793
  • Evans Bwire vs. Andrew Nginda
    Civil Appeal No.147 of 2006
  • Ivita vs. Kyumbu
    [1984] KLR 441
  • Republic –vs Speaker of the Nairobi City County Assembly & Another Exparte Evans Kidero
    [2017] eKLR
  • Joseph Leboo & 2 others vs. Director Kenya Forest Services & Another
    [2013] eKLR
  • Attorney General vs. Kenya Bureau of Standards and another
    [2018] eKLR
  • Nasibwa Wakenya Moses
    (Supra)
Jurisdiction invoked
Section 5(2)(b) of the National Land Commission Act; Sections 1A and 1B of the Civil Procedure Act; Order 1 Rules 10(2) and 14, Order 10 Rule 11 and Order 45 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charles Mutuku v Christopher Nzioki & another [2020] KEELC 3903 (KLR)", Case Analysis (2020). Not stated in the judgment (chamber summons application dated 01st August, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3903/eng@2020-01-27

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