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ELCAllowedNot stated in the judgment (main suit; see also Kerugoya ELC Constitutional Petition No. 23 of 2014 and ELC 73/2012 - Nicodemus Muriuki Vs Jacinta Wairimu & others referenced therein)· [2021] KEELC 1847 (KLR)

James Mwangi Gerald v Antony Warui & 4 other [2021] KEELC 1847 (KLR)

Environment and Land Court of Kenya
23 July 2021
4,637 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The court restored a landowner's titles, ruling that no one's property can be cancelled by a court order issued without giving them a chance to be heard.

What this practically means

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Executive summary

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By a Notice of Motion dated 25th February 2014 under Order 45(1) of the Civil Procedure Rules 2010, Simon Wachira, the 1st Interested Party, sought review and setting aside of the order issued on 13th October 2011 and cancellation of Entry No. 15 in the register of L.R KIINE/SAGANA/356. He deposed that between March and September 2011 he purchased parcels KIINE/SAGANA/3966-3972 from Muriuki Samson Muriithi with Land Control Board consent, obtained title deeds and vacant possession, and developed a shopping mall, only learning of the suit when served with an application in September 2013. He argued the impugned order cancelled his titles without notice or hearing, contrary to natural justice, Articles 40 and 50(1) of the Constitution and Sections 24 and 80 of the Land Registration Act. The 4th and 5th Defendants raised a preliminary objection on locus standi and opposed on merits (no basis for review, inordinate delay, sub-judice/forum shopping with Kerugoya ELC Constitutional Petition No. 23 of 2014); the Plaintiff and 2nd and 3rd Defendants also opposed. The court, E.C. Cherono, ELC Judge, held that an aggrieved non-party may seek review without first being enjoined, that the applicant was the registered proprietor when his titles were cancelled unheard, breaching audi alteram partem, Articles 40 and 50(1) and the protection of title under Section 26 of the Land Registration Act. The application was allowed as prayed, the impugned order reviewed and set aside, with costs in the cause. Judgment delivered at Kerugoya on 23rd July 2021.

Key legal issues

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01

Whether the interested party, not being a party to the proceedings, had locus standi to apply for review

Holding

The court held that an aggrieved person need not first be enjoined as a party to seek review of an order affecting his interests; the court can even enjoin a party suo motu.

Reasoning

Order 45(1) CPR permits any person who considers himself aggrieved to apply for review. The impugned orders cancelled the applicant's registered titles without notice or hearing. Requiring formal joinder first would defeat justice; besides, the court has inherent power to enjoin a party suo motu. Locus was therefore no bar to the application.

p. 7
02

Whether the order of 13th October 2011 (issued 30th September 2011) cancelling the applicant's titles should be set aside

Holding

Yes. The order was issued without hearing the applicant, violating his right to be heard and his protected title under Section 26 of the Land Registration Act, and was therefore liable to be reviewed and set aside.

Reasoning

By the time the orders issued, the applicant was the registered proprietor of the suit parcels, having purchased them with Land Control Board consent and title deeds. Article 40 protects ownership and Article 50(1) guarantees a fair hearing. Section 26 of the Land Registration Act renders such title prima facie indefeasible, challengeable only on fraud or unprocedural acquisition. Cancellation without hearing was unprocedural and liable to be set aside.

p. 7

Legal principles established

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  • Any person aggrieved by a court order, including a non-party whose proprietary interests were affected without being heard, may apply for review under Order 45(1) without first being enjoined as a party.
  • Cancelling a registered proprietor's title without affording him an opportunity to be heard violates natural justice and the constitutional right to property.

Court orders

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  1. 1.The Notice of Motion dated 25th February 2014 is allowed as prayed
  2. 2.The order issued on 13th October 2011 cancelling the applicant's titles is reviewed and set aside
  3. 3.Entry No. 15 in the register of L.R KIINE/SAGANA/356 is to be cancelled
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 45(1)
  • Constitution of Kenya, 2010Article 40(1)
  • Constitution of Kenya, 2010Article 50(1)
  • Land Registration Act No. 3 of 2012Section 26(1)
  • Land Registration Act No. 3 of 2012Sections 24 and 80 (as cited by applicant's counsel)

Cases cited (10)

  • Michael Muriuki Ngibuini Vs East African Building Society Limited
    (2015) e K.L.R.
  • Nasibwa Wakenya Moses Vs University of Nairobi & Another
    (2019) e K.L.R.
  • Muyodi Vs Industrial and Commercial Development Corporation & Another
    (2006) I EA 243
  • Tabitha Njeri Kinuthia Vs Said Swaleh Said & another
    (2019) e K.L.R.
  • Stephen Gathu Kimani Vs Nancy Wanjira Waruingi t/a Providence Auctioneers
    (2016) e K.L.R.
  • Getway Investment Limited Vs Tajmall Limited and 3 others
    (2006) e K.L.R.
  • Niazsons (K) Ltd Vs China Road & Bridge Corporation Kenya
    (2001) KLR 12
  • All Ismail Baraki & Another Vs Chairman, Garissa County Service Board & 4 Others
    C.A. 236 of 2013
  • J.S. Muiru & 2 Others Vs Tigoni Treasures Limited & 3 Others
    (2015) e KLR
  • Nicodemus Muriuki Vs Jacinta Wairimu and others
    ELC 73/2012
Jurisdiction invoked
Order 45(1) of the Civil Procedure Rules 2010 (review jurisdiction); constitutional rights under Articles 40 and 50(1) of the Constitution of Kenya, 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, "James Mwangi Gerald v Antony Warui & 4 other [2021] KEELC 1847 (KLR)", Case Analysis (2021). Not stated in the judgment (main suit; see also Kerugoya ELC Constitutional Petition No. 23 of 2014 and ELC 73/2012 - Nicodemus Muriuki Vs Jacinta Wairimu & others referenced therein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1847/eng@2021-07-23

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