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ELCPartially Allowed· [2021] KEELC 3451 (KLR)

Margaret Nyokabi Kahihu & another v Samuel Mukuha Njuki & another [2021] KEELC 3451 (KLR)

Environment and Land Court
28 January 2021
EOE. O. OBAGA
1,461 words in judgment
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The bottom line

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A Kenyan court ruled that a 2008 family land settlement must be executed as agreed, and a typo in the paperwork couldn't undo it.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Nairobi (E. O. Obaga, J) dealt with two interlocutory applications arising from a 2008 consent judgement in an adverse possession/trust suit over LR Dagoretti/Riruta/1868. The consent had decreed equal sharing of the suit property between the Plaintiffs (children of the Defendant's brother) and the Defendant, with occupation per an approved sketch. After the court allowed the Plaintiffs' application of 1st September 2020 rectifying a typographical error in the extracted decree, the Plaintiffs applied on 13th September 2020 for the Deputy Registrar to sign transfer documents for their portion, LR Dagoretti/Riruta/6620. The Defendant, through a deponent who is a stranger to the proceedings, opposed on grounds of alleged fraudulent subdivision, a pending Court of Appeal matter, and prejudice regarding family burial sites. The court allowed the application in terms of prayers (2) and (3), holding that the consent remained unvaried, the subdivision was complete, and the Respondent's objections came too late. The Defendant's application of 2nd October 2020, seeking to set aside the rectification orders and enlarge time to file a replying affidavit, was dismissed with costs to the Respondents, save that his advocates, M/s Njogu & Associates, were allowed to come on record. The court found the rectification corrected only a typographical error and that setting aside would change nothing in the execution.

Key legal issues

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01

Signing of transfer documents by the Deputy Registrar in execution of a consent decree

Holding

The application was merited; the Deputy Registrar was to sign the documents to facilitate registration since the subdivision was complete and the consent remained unvaried.

Reasoning

The decree arose from a consent judgement recorded in 2008 and was being executed in accordance with a sketch drawn when the consent was entered. The consent had not been set aside despite prior attempts, and the subdivision process was complete. Issues raised by the Respondent about alleged fraudulent signing of mutation forms ought to have been raised long before and did not obstruct the execution of the decree.

p. 2
02

Setting aside of rectification orders and enlargement of time to file a replying affidavit

Holding

The application of 2nd October 2020 was dismissed save for leave to come on record; setting aside the rectification orders would serve no purpose.

Reasoning

The orders of 21st September 2020 merely corrected a typographical error in the extracted decree (186 instead of 1868). Even if the Applicant were heard, nothing new would change the course of execution of the consent judgement, whose setting aside had already failed. Counsel's disclaimer of any review of the judgement rendered setting aside of no value.

p. 2

Legal principles established

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  • A consent judgement stands and is executable unless set aside; execution proceeds in accordance with the sketch approved at the time the consent was entered.
  • A typographical error in an extracted decree may be rectified and does not afford a party a basis to reopen execution of the underlying consent.

Court orders

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  1. 1.The application dated 13th September 2020 is allowed in terms of prayers (2) and (3), permitting the Deputy Registrar to sign the transfer documents to effect registration of the portion awarded to the Plaintiffs
  2. 2.Leave granted for the firm of M/s Njogu & Associates to come on record for the Applicant
  3. 3.The application dated 2nd October 2020 is dismissed with costs to the Respondents
Jurisdiction invoked
Original civil jurisdiction over the suit and interlocutory applications; not expressly invoked in the judgment

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, "Margaret Nyokabi Kahihu & another v Samuel Mukuha Njuki & another [2021] KEELC 3451 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3451/eng@2021-01-28

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