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ELCAllowedNot stated in judgment· [2022] KEELC 2115 (KLR)

Josphat Karaine N’abatu & another v Josphat M’nchebere M’ithae & another [2022] KEELC 2115 (KLR)

Environment and Land Court
19 January 2022
CNC.K. Nzili
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that once a land title deed is issued, disputes over that land belong in court, not in a Minister's appeal.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru against a magistrate's ruling of 29 July 2020 upholding a preliminary objection and striking out the appellants' suit with costs. The appellants had sued the respondents alleging fraudulent registration of L.R No. Athinga/Athanja/8573 and 7717 as subdivisions of L.R No. 8043, seeking cancellation of titles, return of the parcels and a permanent injunction. The respondents denied fraud, counterclaimed for a permanent injunction, and raised a preliminary objection founded on Section 16(2) of the Government Proceedings Act and Order 29 of the Civil Procedure Rules, contending the suit sought injunctions against government officers and that the dispute lay within the Minister's adjudication appeal process. The trial court upheld the objection and struck out the suit. C.K. Nzili, ELC Judge, allowed the appeal on two grounds. First, the parcels were already registered with title deeds issued, so the trial court erred in applying the Land Adjudication Act and Land Consolidation Act; the applicable law was the Land Registration Act, under which the court may rectify the register for fraud, mistake or collusion, and magistrate's courts have jurisdiction over title and boundary claims within pecuniary limits. Second, the Government Proceedings Act was inapplicable as the Government was not a party and the pleadings did not seek an injunction against the Land Registrar. The appeal was allowed with costs to the appellants.

Key legal issues

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01

Whether the trial court applied the correct law where title deeds had already been issued

Holding

The trial court erred in applying the Land Adjudication Act and Land Consolidation Act; the applicable regime was the Land Registration Act and the ELC Act, as the parcels were already registered.

Reasoning

The rival claims concerned registered parcels with title deeds, not adjudication numbers, so claims were beyond the Land Adjudication Act and Land Consolidation Act. Section 80 of the Land Registration Act allows court-ordered rectification on fraud, mistake or collusion, and Section 26 of the ELC Act confers jurisdiction on magistrates' courts subject to pecuniary limits. The trial court mistakenly believed rectification was covered only by the Land Consolidation and Land Adjudication Acts.

p. 3
02

Whether the preliminary objection founded on the Government Proceedings Act was rightly upheld

Holding

The preliminary objection was wrongly upheld; the Government was not a party and the pleadings did not seek an injunction against the Land Registrar.

Reasoning

Section 16(2) of the Government Proceedings Act bars injunctions against government officers only where the effect would be relief against the Government. The appellants' claim was against the respondents for fraudulent acquisition of title and a permanent injunction against them; the respondents' counterclaim equally sought an injunction. The trial court misconstrued the pleadings and declined jurisdiction on a basis not founded in them, and inconsistently continued to entertain applications after striking out the suit.

p. 3

Legal principles established

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  • Once a title deed is issued in a previously adjudicated area, disputes over the registered land fall to be determined by the court, not by way of an appeal to the Minister.
  • A magistrate's court has jurisdiction to hear land matters including title and boundary claims within its pecuniary limits.
  • The court may order rectification of the register where registration was obtained by fraud, mistake or collusion.

Court orders

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  1. 1.The appeal is allowed
  2. 2.Costs of the appeal to the appellants

Authorities

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Legislation

  • Government Proceedings ActSection 16(2)
  • Civil Procedure RulesOrder 29 rule 2(2)(3)
  • Environment and Land Court ActSection 26; Section 2
  • Magistrates ActSection 7(1)
  • Land Registration ActSection 80
  • Land Consolidation ActSection 26(2)
  • Land Adjudication ActSection 29(1)

Cases cited (7)

  • Selle –vs- Associated Motor Boat Company Ltd
    [1968] EA 123
  • Douglas Karithi & Another –vs- Stanley Gatuma
    [2019] eKLR
  • Jackson Koome –vs- M'limongi M'ikuamba & 2 others
    [2018] eKLR
  • Peter Kimandiu –vs- Land Adjudication Officer & Others
    [2016] eKLR
  • Stephen Kungutia & 2 Others –vs- Severina Nchulubi
    (unreported)
  • Elijah Kinyua Nganga & 3 Others –vs- Gitu Wa Kahengeri & 3 Others
    [2014] eKLR
  • Abdallah Mangi Mohamed –vs- Lazarus & 5 Others
    [2012] eKLR
On appeal from
Magistrates' Court
Jurisdiction invoked
First appeal from a magistrate's court under Section 26 of the Environment and Land Court Act and Section 7(1) of the Magistrates Act 2015

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, "Josphat Karaine N’abatu & another v Josphat M’nchebere M’ithae & another [2022] KEELC 2115 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2115/eng@2022-01-19

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