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ELCDismissedJudicial Review Miscellaneous Application (Notice of Motion dated 19th October, 2020)· [2021] KEELC 1608 (KLR)

Prime Alms Limited v Registrar of Titles (Environment and Land Miscellaneous Application 5 of 2020) [2021] KEELC 1608 (KLR)

Environment and Land Court
8 October 2021
1,643 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 threw out a land title challenge because the buyer filed a new case instead of resolving it in an existing case over the same land.

What this practically means

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Executive summary

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Prime Alms Limited, as Ex parte Applicant, brought a Notice of Motion dated 19th October 2020 under Order 53 Rule 3 of the Civil Procedure Rules and the Law Reform Act seeking judicial review orders of mandamus, certiorari and prohibition against the Registrar of Titles. The applicant contended that it purchased parcel LR No. 12715/1 from John Nzioka Makau (deceased) in 1998 and took vacant possession, and that despite injunctive orders issued in Machakos ELC No. 55 of 2017 (previously Nairobi ELC 826 of 2007), the Registrar registered a transfer of the property to one George Ngure Kariuki. The Registrar opposed the application through a preliminary objection arguing that the suit was sub judice, offended Section 6 of the Civil Procedure Act, amounted to forum shopping, and was an abuse of process given the pendency of the ELC suit over the same property. The court found that the applicant had acknowledged the pending suit but had failed to join the parties to that suit, including the alleged third-party purchaser, as interested parties. Since ownership of the suit property was to be determined in Machakos ELC No. 55 of 2017, the applicant should have sought relief concerning the impugned transfer in that suit rather than file a separate one. The court held the application to be an abuse of process and unmeritorious, and dismissed the Notice of Motion dated 19th October 2020 with costs.

Key legal issues

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01

Whether the judicial review application was sub judice and an abuse of the court process

Holding

The application was dismissed as an abuse of process because the ownership of the suit property is pending determination in Machakos ELC No. 55 of 2017 and the parties to that suit were not joined as interested parties

Reasoning

The court found that the applicant acknowledged the pending suit over the same parcel but filed the judicial review application without joining the defendants in that suit or the third-party transferee. Since ownership of the property falls to be determined in the pending suit, remedies concerning the impugned transfer, including declaratory orders and cancellation of title, should be sought in that suit. The dispute is private in nature, and a separate suit was unnecessary, amounted to forum shopping, and was not meritorious.

p. 3

Legal principles established

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  • Where a suit over the same property is pending, a party must pursue remedies in that suit rather than file a separate suit without joining the parties to the pending suit

Court orders

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  1. 1.The Notice of Motion dated 19th October, 2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53, Rule 3
  • Law Reform Actnot specified
  • Civil Procedure ActSection 6
  • Fair Administrative Action ActSection 7

Cases cited (3)

  • Council of Civil Service vs Minister for Civil Service
    (1985) AC 374
  • Gurbachan Singh Kalsi vs Yowani Ekori
    Civil Appeal No. 62 of 1958
  • Republic vs Registrar of Societies - Kenya & 2 Others Ex-Parte Moses Kirima & 2 Others
    [2017] eKLR
Jurisdiction invoked
Order 53, Rule 3 of the Civil Procedure Rules and the Law Reform Act; Section 7 of the Fair Administrative Action Act

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, "Prime Alms Limited v Registrar of Titles (Environment and Land Miscellaneous Application 5 of 2020) [2021] KEELC 1608 (KLR)", Case Analysis (2021). Judicial Review Miscellaneous Application (Notice of Motion dated 19th October, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1608/eng@2021-10-08

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