Arthur Ngugi Mbugua & 2 others v Said Jadi Kongo & another [2021] KEELC 4308 (KLR)
The bottom line
#A Kenyan court confirmed that a Land Registrar cannot cancel land titles to defeat a court judgment, and delayed review applications will fail.
What this practically means
#Executive summary
#Key legal issues
#Whether discovery of the purported reversion of the suit title constituted new and important matter warranting review
No. The reversion was procured after judgment by the Land Registrar in collusion with the defendants and the 2nd and 3rd plaintiffs, and the Registrar had no power to cancel title; it was a scheme to circumvent the judgment.
The court examined section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, which permit review on discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, without unreasonable delay. The defendants' 'new evidence' — that the title had reverted to Margaret Wanjiku Mbugua — arose from post-judgment acts of the Land Registrar, not from anything unavailable at trial. Citing R v Chief Land Registrar & Another ex parte Yosabi Kerubo Manyura, the court held the Registrar had no power to cancel title, and condemned the conduct as a grave interference with the administration of justice.
Whether the delay of two years in filing the review application was excusable
No. Two years was inordinate delay with no good reason; the delay was spent executing a scheme to defeat the judgment.
Order 45 requires that a review application be made without unreasonable delay. The judgment was delivered on 9 May 2017 and the review application was filed on 29 January 2020 — some two years later. The court found no justification for the delay, observing that the intervening period had been used by the applicants and the 2nd and/or 3rd plaintiff to scheme to defeat the judgment through the Land Registrar. The delay independently disentitled the defendants to review.
Whether the plaintiffs' application for police security during execution should be granted
Yes. Having dismissed the review application, there was no basis to deny the plaintiffs execution; the OCS Likoni was ordered to provide adequate security to the Court Bailiff.
The plaintiffs obtained judgment on 9 May 2017 ordering vacant possession, demolition of improvements, and a permanent injunction against the defendants, who had not appealed. The defendants' resistance rested entirely on the failed review application and the Registrar's unlawful reversion of title. The court reasoned that with the review dismissed, nothing stood in the way of execution, and given the apprehension of resistance during demolition of the defendants' house, police security was warranted to ensure law and order during execution.
Legal principles established
#- An application for review must be brought without unreasonable delay, and a delay of two years without good reason is inordinate
- A party aggrieved by another's title must file suit to challenge it; a Land Registrar has no power to unilaterally cancel title
Court orders
#- 1.The defendants' application dated 29 January 2020 for review of the judgment and decree is dismissed with costs
- 2.Reversal of the Land Registrar's cancellation/reversion of the title to the suit property
- 3.Entries made by the Land Registrar affecting title after the judgment declared null and void and cancelled, so the title reverts to its position at the time of delivery of the judgment
- 4.The suit property to be removed from the properties included in Mombasa CMC Succession Cause No. 10 of 2019 (estate of Margaret Wanjiku)
- 5.The orders touching on the subject title to be served upon the Land Registrar and the Magistrate handling Mombasa CMC Succession Cause No. 10 of 2019 and be executed forthwith
- 6.The plaintiffs' application dated 9 December 2019 is allowed; plaintiffs at liberty to appoint a Court Bailiff to execute the judgment and decree
- 7.The OCS Likoni ordered to provide adequate security to the Court Bailiff during execution
- 8.The defendants to shoulder the costs of both applications and the costs of the execution process
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; applications under Order 40 and Orders 22, 45 and 51 of the Civil Procedure Rules and section 80 of the Civil Procedure Act (Cap. 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arthur Ngugi Mbugua & 2 others v Said Jadi Kongo & another [2021] KEELC 4308 (KLR)", Case Analysis (2021). Not stated in judgment (Environment and Land Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4308/eng@2021-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.