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ELCPartially AllowedNot stated in the judgment as provided· [2022] KEELC 1832 (KLR)

Hannah Wanjiku Kamau (Suing as legal representative of Kamau Kiuri Karongo) v Jane Njeri Karongo & & 3 others [2022] KEELC 1832 (KLR)

Environment and Land Court
27 January 2022
3,169 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed repeat attempts to delay a land transfer and ordered officials to enforce the judgment themselves after the losing family failed to comply.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (S. Okong'o, J) disposed of two competing applications arising from a judgment of 30th October 2019 in a family land-trust dispute, in which the court ordered the defendants to excise 1½ acres from Kiambaa/Kihara/573 and 0.75 of an acre from Kiambaa/Kihara/584 (subdivided into parcels 4509-4515) and transfer them to the plaintiff as legal representative of the estate of Kamau Kiuri Karongo. A stay pending appeal granted on 15th July 2020 on condition that the defendants deposit Kshs.1,000,000 as security within 60 days lapsed automatically when they failed to comply. The defendants' first review application seeking to substitute a title deed for cash security was dismissed on 15th April 2021 because the title belonged to a deceased person. The defendants then filed a second, identical review application on 8th June 2021, contending that the estate's legal representative had now authorized use of the title. The court dismissed it as res judicata, holding that a party cannot seek the same orders through multiple applications on different grounds, and that in any event the security was unsuitable since the property remained registered in the name of a deceased person and the stay had lapsed. Allowing the plaintiff's application dated 25th June 2021, the court invoked section 98 of the Civil Procedure Act to order the Land Registrar and County Survey office to register the decree, partition and excise the portions, and directed the Deputy Registrar to execute all transfer documents, with police security during the exercise. The plaintiff was awarded the costs of both applications.

Key legal issues

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01

Whether the second review application is res judicata

Holding

It is res judicata because an identical review application on the same grounds had been heard and dismissed; the new fact of the estate's consent cannot free it from res judicata

Reasoning

The defendants had previously sought identical orders by the amended Notice of Motion dated 11th November 2020, dismissed on 15th April 2021. The orders sought and the grounds were the same; the only new matter was consent of the legal representative of the estate, which cannot cure res judicata. Allowing successive reviews on different grounds would mean no end to litigation.

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02

Whether the proposed alternative security was acceptable on the merits

Holding

It was not: the title was still registered in the name of a deceased person and not in the name of the person said to have authorized its use, hence unsuitable as security

Reasoning

The parcel whose title the defendants wished to deposit remained registered in the name of Peter Munga Karongo, a deceased person, not his legal representative who allegedly authorized its use. Further, the one-year stay granted on 15th July 2020 had lapsed since the security conditions were never met, rendering the review application moot on the merits.

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03

Whether the court could enforce the decree through the Land Registrar, Surveyor and Deputy Registrar

Holding

Yes; under section 98 of the Civil Procedure Act the court may order nominated persons to execute documents where a party refuses to comply with a decree

Reasoning

Having failed to comply with the conditions of stay, the stay stood discharged and the defendants were obliged to comply with the decree. Section 98 permits the court, where a person neglects or refuses to execute a conveyance, to order that it be executed by a nominated person, which supports orders for registration, partition, excision and execution by the Deputy Registrar.

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Legal principles established

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  • A court that has considered and determined an application for review cannot entertain another application for review of the same orders; a party cannot seek similar orders through multiple applications on different grounds
  • A court has inherent power, exercisable under section 98 of the Civil Procedure Act, to order the Government Surveyor, Land Registrar and Deputy Registrar to execute documents where a party neglects or refuses to comply with a decree

Court orders

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  1. 1.The defendants' application dated 8th June 2021 is dismissed
  2. 2.The plaintiff's application dated 25th June 2021 is allowed
  3. 3.The Land Registrar in charge of Kiambu Land Registry shall forthwith register the decree given on 30th October 2019 against the register of Land Parcel No. Kiambaa/Kihara/573 and all subdivisions emanating from Land Parcel No. Kiambaa/Kihara/584 including parcels 4509 to 4515
  4. 4.The Land Registrar and Kiambu County Survey office shall forthwith partition Land Parcel No. Kiambaa/Kihara/573 by excising 1½ acres and registering it in the name of Hannah Wanjiru Kamau as legal representative of the estate of Kamau Kiuri Karongo
  5. 5.If the plaintiff or beneficiaries are in occupation of any part of Kiambaa/Kihara/573, the 1½ acres to be transferred shall include the land they currently occupy
  6. 6.The Land Registrar and Kiambu County Survey office shall partition any one or more of parcels Kiambaa/Kihara/4509 to 4515 and register an aggregate of 0.75 of an acre in the name of Hannah Wanjiru Kamau as legal representative of the estate of Kamau Kiuri Karongo
  7. 7.The partition and excision shall be carried out on parcels registered in the names of Margaret Wamaitha Karanja and Stephen Njenga Karanja as legal representatives of Karanja Kiuri and/or beneficiaries of that estate
  8. 8.The Deputy Registrar of the court shall execute the instruments of transfer and all necessary documents on behalf of the defendants
  9. 9.The officer in charge of Kihara Police Station shall provide security during the survey/excision
  10. 10.The plaintiff shall meet the costs of the subdivision, transfer and registration
  11. 11.Either party at liberty to apply limited to issues arising during enforcement
  12. 12.The plaintiff shall have the costs of the two applications

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21 Laws of Kenyasection 80
  • Civil Procedure Act, Chapter 21 Laws of Kenyasection 98
  • Civil Procedure Act, Chapter 21 Laws of Kenyasection 7
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 45 Rule 6
Jurisdiction invoked
Inherent power of the court to execute its decrees, section 98 of the Civil Procedure Act, Chapter 21 Laws of Kenya

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, "Hannah Wanjiku Kamau (Suing as legal representative of Kamau Kiuri Karongo) v Jane Njeri Karongo & & 3 others [2022] KEELC 1832 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1832/eng@2022-01-27

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