Mbaro Johnson & 9 others v Taveta Teachers Investment Ltd & another [2021] KEELC 3182 (KLR)

The court traced the background: the applicants obtained judgment on 29th March 2019 declaring they had acquired title by adverse possession over Title No.771/II/MN CR 8594 measuring 47.62 acres, and a decree was issued on 3rd June 2019. Since Section 38(1) of the Limitation of Actions Act contemplates an application to the High Court for an order that the adverse possessor be registered as proprietor, and only the Registrar can effect registration, the applicants were justified in bringing the application even though the Registrar was not a party to the suit.

Relying on the doctrine as explained in Telkom Kenya Limited v John Ochanda, following Chandler v Alberta Association of Architects, the functus officio rule applies once a formal judgment is drawn up, save where there was a slip in drawing it up or an error in expressing the manifest intention of the court. The court held that its manifest intention in the 2019 judgment was to have the applicants registered as proprietors of the suit land, having found title by adverse possession, so the application did not offend the doctrine. Registration was the only way of enforcing the decree.

The 1st respondent argued that the ex-parte judgment was against Title Number 771/II/MN and not CR Number 8594 which belongs to Taita Taveta Teachers Investment Ltd. The court held the subject matter of the suit as captured in the judgment was Title No.771/II/MN CR 8594 measuring 47.62 acres, so the application did not comprise matters extraneous to the suit and decree.

The respondents argued that the Registrar of Titles was not a party to the suit and could not be enjoined at the point of enforcing orders. The court held that Section 38(1) of the Limitation of Actions Act provides for an application for registration and the only person who can register land is the Registrar, so the prayer directing the 2nd respondent was not fatal to the application.