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ELCAllowedNot stated in the judgment (Application dated 17th June 2021 in the suit determined by judgment of 3rd March 2017)· [2021] KEELC 694 (KLR)

Jacob Ilandi Mati v Samuel Mati Gedion Mwinzi [2021] KEELC 694 (KLR)

Environment and Land Court
9 November 2021
LKL. G. Kimani
1,253 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court corrected a land judgment that cited a title number no longer in existence, allowing the winner to actually enforce it.

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 Kitui on a Notice of Motion dated 17th June 2021 in which the Plaintiff/Applicant sought review of the judgment delivered on 3rd March 2017 and the decree issued on 13th March 2017. The suit had proceeded undefended before Angote J, and the court declared that the Defendant held title to L.R. No. 4096/119 Grant No. I.R. 1839 in trust for the Plaintiff, ordered transfer of the title, restrained the Defendant from laying any claim over it, and awarded costs. When the Applicant went to register the decree in November 2020, it was returned unregistered because the title had been surrendered. A search revealed that on 1st September 1988 the original 33-year lease grant (I.R.N 1839, expiring 30th September 1996) had been surrendered in exchange for a new 99-year grant numbered I.R.N 4323, a change not captured in the plaint. The Applicant relied on Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules 2010, contending discovery of new matter. Applying Francis Origo & Another v Jacob Kumali Mungala, Kimani J found the two grant numbers refer to one and the same property, that the decree could not be executed as it referred to a title number that no longer exists, and that the overriding objective under Sections 1A and 3A favoured allowing the review. The application was allowed: references to I.R.N 1839 in the judgment and decree were to be changed to I.R.N 4323.

Key legal issues

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Whether review was merited on the ground of discovery of new matter

Holding

Review was merited: the change of the grant number from I.R.N 1839 to I.R.N 4323 following surrender of the title was a new matter not known when the decree was issued, and the two grant numbers refer to one and the same property.

Reasoning

The court examined the documents produced and found the original grant issued on 24th March 1964 for 33 years was surrendered on 1st September 1988 in exchange for a new 99-year grant numbered I.R.N 4323. This change was not captured in the plaint, whose prayers referenced the defunct grant. Executing a decree over a non-existent title would defeat justice, and the overriding objective under Sections 1A and 3A favours amendment so the Applicant can enjoy the fruits of his decree.

p. 2

Legal principles established

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  • An applicant for review must show discovery of new and important matter or evidence not within his knowledge after due diligence, or an error apparent on the face of the record, or other sufficient reason, and must apply without unreasonable delay.
  • Where a decree refers to a title number that no longer exists owing to a change in the grant, the overriding objective justifies review so the decree holder can enjoy the fruits of the decree.

Court orders

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  1. 1.The application dated 17th June 2021 is allowed to the extent that the judgment dated 3rd March 2017 and the decree issued on 13th March 2017 be reviewed and/or amended
  2. 2.Any reference to L.R. NO. 4096/119 Grant No. I.R.N 1839 in the judgment and decree shall be changed to read L.R. 4096/119 Grant Number I.R.N 4323

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules 2010Order 45 Rule 1

Cases cited (1)

  • Francis Origo & Another V Jacob Kumali Mungala
    C.A. Civil Appeal No. 149 of 2001
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules 2010

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, "Jacob Ilandi Mati v Samuel Mati Gedion Mwinzi [2021] KEELC 694 (KLR)", Case Analysis (2021). Not stated in the judgment (Application dated 17th June 2021 in the suit determined by judgment of 3rd March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/694/eng@2021-11-09

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