John Kinyua Kabui & another v Benina Wairimu Kabui [2021] KEELC 2564 (KLR)
The bottom line
#The Kerugoya Environment and Land Court refused to pause enforcement of a family land subdivision ruling, but corrected a misspelled family member's name.
What this practically means
#Executive summary
#Key legal issues
#Stay of execution pending appeal under Order 42 Rule 6
The stay application was dismissed. The Applicants' claim of substantial loss by reason of residence on the land was unconvincing since the judgment required them to subdivide for all family members including themselves; there was a 1 year 4 months unexplained delay; and no security was offered.
The court applied Order 42 Rule 6 conditions: substantial loss, no unreasonable delay, and security. Residence on the land was not nullified by the judgment, so no substantial loss was shown. The gap between judgment (12th July 2019) and application (27th November 2020) was unexplained. The Applicants were silent on security, which must be offered by the applicant and not inferred by the court.
Partial review of judgment to insert specific names of family members
Allowed in part. The misspelling of 'Richard Karugendo' instead of 'Richard Kabue Karigu' was an error apparent on the face of the record warranting review; the amended declaration and subdivision orders now name the seven family members specifically.
Both parties agreed the name was mistakenly recorded in the plaint and the judgment's reference to paragraph 4 prejudiced that family member. The correction does not change the judgment or prejudice the Respondents, so it qualified for review as an error apparent on the face of the record.
Scope of 'any other sufficient reason' for review
Prayers (c), (d) and (e) of the review application were refused because 'any other sufficient reason' must be analogous to the two specified grounds, and dispensation with production of title deeds is a matter for the Land Registrar's discretion under Section 31 of the Land Registration Act.
The court held that the Respondents had never been requested to produce documents, and that the Land Registrar holds statutory discretion to dispense with production of original titles, exercisable on written request; only a refusal by the registrar should be brought to court.
Legal principles established
#- For a stay of execution under Order 42 Rule 6, the applicant must establish sufficient cause, substantial loss, no unreasonable delay and offer security; all four conditions must be met
- A correction of a name mistakenly noted in the plaint, not changing the substance of the judgment or prejudicing any party, qualifies for correction under review as an error apparent on the face of the record
- The correct procedure where a party seeks dispensation with production of an original title deed is to first request the Land Registrar in writing under Section 31 of the Land Registration Act, and only move to court if the registrar refuses
Court orders
#- 1.The Application dated 27th November 2020 seeking stay of execution is dismissed
- 2.A declaration that Land Parcel Numbers Mutira/Kaguyu/608 and 609 are in the names of the Defendants to hold in trust for themselves and all other family members, that is: Benina Wairimu Kabui; Joseph Karani Kabui; Mary Wakabari; Richard Kabue Karigu; Peter Mugera; Lucy Wanjiru and Teresia Wangechi
- 3.An order compelling the Defendants to sub-divide Land Parcel Numbers Mutira/Kaguyu/608 and 609 in equal portions and to register the sub divisions and transfers in favour of the Defendants and all family members named
- 4.Each party should bear its costs
- Jurisdiction invoked
- Order 42 Rule 6 and Order 45 Rule 1 of the Civil Procedure Rules, 2010; Section 80 of the Civil Procedure Act, Cap 21 (this being the court which delivered the judgment of 12th July 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kinyua Kabui & another v Benina Wairimu Kabui [2021] KEELC 2564 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2564/eng@2021-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.