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ELCDismissedNot stated (Busia Environment and Land Court)· [2022] KEELC 1726 (KLR)

Isaac Ouma Nyabera v County Goverment of Busia [2022] KEELC 1726 (KLR)

Environment and Land Court
27 January 2022
AOA. Omollo
2,507 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Busia's Environment and Land Court dismissed the County Government's attempt to reopen a 2018 land case, confirming that probate-granted title cannot be attacked in a court of equal status.

What this practically means

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Executive summary

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The County Government of Busia (defendant) applied by notice of motion dated 8th February 2021 seeking review and setting aside of a judgment delivered at Busia on 11th April 2018, a mandatory injunction to reopen its livestock auction ring on land parcel Marachi/Bujumba/2414, a temporary injunction restraining the plaintiff from alienating the land, and restoration of its registration as owner. The defendant contended that it had purchased 0.7 ha from Nyangweso Agoro, that new evidence showed a conspiracy within its own Lands Department and by the advocates then on record which denied the court evidence of its interest, and that the plaintiff had failed to disclose material facts in the probate proceedings through which his title was transmitted. The plaintiff opposed, asserting he was the absolute registered owner deriving title by transmission from a fresh grant in Busia HC P&A No. 205 of 2009, that the orders in that cause remained unchallenged, that the application was brought after three years of undue delay, and that the ELC lacked jurisdiction to cancel his title while the probate orders subsisted. The court framed the review principles under Section 80 of the Civil Procedure Act and Order 45 and held that the matters relied on were not new, having been within the applicant's knowledge before trial; that the alleged conspiracies were unparticularised; and that the ELC, being of equal status with the P&A court under Article 162, lacked power to revise the grant underpinning the plaintiff's title. The application was dismissed with each party bearing their respective costs.

Key legal issues

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01

Threshold for review under Section 80 Civil Procedure Act and Order 45

Holding

The application failed to meet the threshold for review; no new and important evidence was discovered that could not have been produced at trial

Reasoning

The matters now relied on - the manner in which the respondent acquired title and the alleged non-disclosure in the P&A proceedings - were within the applicant's knowledge before the 2017 hearing, since the P&A matter had been concluded long before trial. The applicant had already attempted, unsuccessfully, to set aside the P&A orders and had appealed, later withdrawing the appeal. The alleged conspiracies were not particularised, no date of discovery was given, and the respondent's complicity was not disclosed.

p. 3
02

Jurisdiction to disturb a probate grant and title derived from it

Holding

The ELC lacks power to revise the grant conferring the respondent's title, being of equal status with the P&A court

Reasoning

The respondent's title arose by transmission from a grant in Busia HC P&A No. 205 of 2009. Under Article 162 both courts are of equal status, so the ELC cannot revise the grant. Until the grant is revoked or set aside by the appropriate court, the title cannot be attacked for fraud. The applicant must seek protection from the court that made the order.

p. 3

Legal principles established

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  • The Environment and Land Court and the High Court sitting as a Probate and Administration court are courts of equal status, so the ELC cannot revise or set aside a grant made by the P&A court
  • A title transmitted under a subsisting probate grant cannot be challenged for fraud in a different court of equal status until the grant is revoked or set aside

Court orders

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  1. 1.The defendant's application dated 8th February 2021 is dismissed for want of merit
  2. 2.Each party to bear their respective costs

Authorities

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Legislation

  • Judicature ActSection 5(i)
  • Civil Procedure ActSections 1A, 3A, 63(e), 80
  • Civil Procedure RulesOrders 40, 45, 53
  • Law of Succession ActSection 85
  • Land Registration ActSections 24, 25, 26
  • Constitution of KenyaArticles 159(2), 162
Jurisdiction invoked
Article 162 of the Constitution (Environment and Land Court); Sections 1A, 3A and 63(e) of the Civil Procedure Act, Section 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules, Section 5(i) of the Judicature Act

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, "Isaac Ouma Nyabera v County Goverment of Busia [2022] KEELC 1726 (KLR)", Case Analysis (2022). Not stated (Busia Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1726/eng@2022-01-27

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