Hannah Wanjiku Kamau (Suing as legal representative of Kamau Kiuri Karongo) v Jane Njeri Karongo & & 3 others [2022] KEELC 1832 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the second review application is res judicata
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
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.
Whether the proposed alternative security was acceptable on the merits
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
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.
Whether the court could enforce the decree through the Land Registrar, Surveyor and Deputy Registrar
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
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.
Legal principles established
#- 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
#- 1.The defendants' application dated 8th June 2021 is dismissed
- 2.The plaintiff's application dated 25th June 2021 is allowed
- 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.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.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.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.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.The Deputy Registrar of the court shall execute the instruments of transfer and all necessary documents on behalf of the defendants
- 9.The officer in charge of Kihara Police Station shall provide security during the survey/excision
- 10.The plaintiff shall meet the costs of the subdivision, transfer and registration
- 11.Either party at liberty to apply limited to issues arising during enforcement
- 12.The plaintiff shall have the costs of the two applications
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.