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ELCDismissedNot stated in the judgment (ruling on the plaintiff's Notice of Motion dated 19th March 2021)· [2021] KEELC 2768 (KLR)

Kombo Namurwe Rashid (suing as the Administrator to the Estate of Rashid Mashauri Namurwe (Deceased ) v David Fabian Mukewa [2021] KEELC 2768 (KLR)

Environment and Land Court
24 June 2021
1,333 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Bungoma court dismissed a land owner's bid to cancel titles sold to third parties, ruling the court had completed its role and delays cannot be revived.

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 Bungoma (Boaz N. Olao, J) on the plaintiff's Notice of Motion dated 19th March 2021, filed 22nd March 2021, in a dispute over land parcel NO WEST BUKUSU/SOUTH MATEKA/3503. By a judgment of 15th November 2018, reviewed on 21st November 2019, the plaintiff had been declared entitled to the parcel by adverse possession, the defendant's registration was ordered cancelled, and the Deputy Registrar was empowered to execute transfer documents if the defendant defaulted within 30 days. An amended decree was extracted on 18th December 2019. Sixteen months later, the plaintiff, acting in person, sought orders nullifying or cancelling titles and sub-divisions of the parcel and authorising the Deputy Registrar to sign the transfer documents. The defendant, also in person, opposed through grounds of opposition, asserting the parcel was his share of succession property which he had sold in 2006 to Donald Alukonya and Alex Chogo Amoi, now in occupation. The judge held that although the motion cited no provision of law, it was saved by Order 51 Rule 10(2) and Article 159(2)(d). On the merits, the parcel had been sub-divided and sold to third parties who were strangers to the suit; cancelling their titles would breach Articles 40 and 50. Further, the registration orders had already been granted and decreed, and the plaintiff's 16-month inaction meant the court had become functus officio and the subject matter had dissipated. The application was dismissed with costs on 24th June 2021.

Key legal issues

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01

Whether a court may cancel titles of sub-divisions sold to third parties who were not parties to the suit

Holding

It may not; such third parties are strangers to the judgment and their constitutional rights under Articles 40 and 50 would be violated

Reasoning

The defendant stated he had sub-divided the parcel and sold portions to Donald Alukonya and Alex Chogo Amoi, who are in occupation; the plaintiff confirmed the sub-division in his affidavit. Although no documentary evidence was placed before the Court, the judge had no reason to doubt the assertion. Cancelling the new titles would affect the property rights of non-parties and condemn them unheard, which the Constitution forbids.

p. 3
02

Whether the court could grant the sought orders notwithstanding being functus officio after judgment and extraction of the decree

Holding

The court had become functus officio; the orders sought were already embodied in the decree of 18th December 2019 and the plaintiff's 16-month inaction could not revive them

Reasoning

The orders sought had largely been granted on 21st November 2019. The plaintiff was obliged to prepare the transfer documents and, on the defendant's default, approach the Deputy Registrar. He did neither for 16 months. Re-opening the matter, even under the slip rule in Section 99, was impermissible because it would amend the judgment to bind strangers to the trial.

p. 3
03

Whether a Notice of Motion not predicated on any provision of law is competent

Holding

It is competent in substance, saved by Order 51 Rule 10(2) of the Civil Procedure Rules and Article 159(2)(d) of the Constitution, especially for parties acting in person

Reasoning

The judge noted the application cited no legal provision but held that lapses in drafting by litigants in person should not defeat substance. Article 159(2)(d) requires the court to serve justice without undue regard to procedural technicalities. The application failed on its merits, not on form.

p. 2

Legal principles established

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  • A court cannot cancel titles of new proprietors who were not parties to the suit, as that would abrogate their constitutional right to property and condemn them unheard
  • A court becomes functus officio after delivering judgment and extracting a decree; it cannot, even under the slip rule, amend its judgment to include strangers who were not involved in the trial
  • An application not premised on any provision of law is saved by Order 51 Rule 10(2) of the Civil Procedure Rules, which bars dismissal for want of form not affecting the substance
  • Once a decree is extracted with an order for the Deputy Registrar to sign documents in default of the defendant's execution, it is the decree-holder's responsibility to prepare and present the documents promptly; the court will not assist a party who sleeps on his rights

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 19th March 2021 and filed on 22nd March 2021 is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 50
  • Civil Procedure RulesOrder 51 Rule 10(2)
  • Civil Procedure Act (referred to as 'Civil Procedure Rule')Section 99 (slip rule)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; the application was saved by Order 51 Rule 10(2) of the Civil Procedure Rules and the Court invoked Article 159(2)(d) of the Constitution

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, "Kombo Namurwe Rashid (suing as the Administrator to the Estate of Rashid Mashauri Namurwe (Deceased ) v David Fabian Mukewa [2021] KEELC 2768 (KLR)", Case Analysis (2021). Not stated in the judgment (ruling on the plaintiff's Notice of Motion dated 19th March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2768/eng@2021-03-22

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