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ELCOtherELCJR No. E003 OF 2021· [2022] KEELC 194 (KLR)

Republic v Land Registrar Nakuru Land Registry Ex parte Benjamin Gitere Kimari & another [2022] KEELC 194 (KLR)

Environment and Land Court
27 April 2022
DOD. O. Ohungo
664 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to rule on a land dispute case because the key court document was never actually filed, despite both sides arguing it.

What this practically means

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Executive summary

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This is a directions ruling, not a substantive judgment, in a judicial review matter before the Environment and Land Court at Nakuru. The applicants, administrators of the estate of the late Kenneth Kimari Kahura, sought leave to apply for mandamus to lift a restriction under Section 78(1) and (2) of the Land Registration Act 2012 on land parcel Nakuru Municipality Block 5/294. Leave was granted on 22nd March 2021, with the substantive Notice of Motion to be filed within 21 days. At a mention on 20th September 2021 before Mwangi Njoroge J, the file was returned to Ohungo J to write judgment. On perusing the file, the judge discovered that no substantive Notice of Motion had ever been filed, despite both parties having exchanged written submissions on it. Unable to mention the matter to hear the parties on this irregularity, the judge concluded the matter was not ready for judgment and declined to write one. Instead, directions were issued: the matter to be mentioned on 25th May 2022 before the ELC at Nakuru for further directions, and all future proceedings, including hearing and determination, to be conducted at Nakuru. The ruling was delivered electronically at Kakamega on 27th April 2022. No costs order was made and no substantive relief was determined.

Key legal issues

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01

Whether judgment could be rendered in the absence of a substantive Notice of Motion

Holding

Judgment could not be written as the matter was not ready for judgment, both parties having filed submissions on a motion that was never filed

Reasoning

The judge granted leave on 22nd March 2021 and directed filing of the substantive Notice of Motion within 21 days. On perusal of the file before judgment, no Notice of Motion was located; enquiries through the Deputy Registrar confirmed none was ever filed. Both parties nonetheless filed submissions on the non-existent motion. In the interest of justice the parties must be heard on the scenario before any further step.

p. 2

Legal principles established

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  • A court cannot deliver judgment where no substantive motion is on record; parties must first be heard on the procedural irregularity

Court orders

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  1. 1.The matter to be mentioned on 25th May 2022 before the Environment and Land Court at Nakuru for further directions, with the Deputy Registrar to notify parties
  2. 2.All future proceedings including hearing and determination of the matter to be undertaken before the Environment and Land Court at Nakuru

Authorities

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Legislation

  • Land Registration ActSection 78(1) & (2)
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court (chamber summons for leave to apply for mandamus under Section 78(1) & (2) of the Land Registration Act 2012)

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, "Republic v Land Registrar Nakuru Land Registry Ex parte Benjamin Gitere Kimari & another [2022] KEELC 194 (KLR)", Case Analysis (2022). ELCJR No. E003 OF 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/194/eng@2022-04-27

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