Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2022] KEELC 3815 (KLR)

Kori v District Land Registrar Nyandarua & another (Environment and Land Miscellaneous Application 14 of 2017) [2022] KEELC 3815 (KLR)

Environment and Land Court
23 June 2022
2,144 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Nyahururu court refused to undo orders confirming a 6m access road, ruling service through a party's own advocates was perfectly valid.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Nyahururu (Y. M. Angima, J) disposed of a notice of motion dated October 21, 2021 by an interested party seeking to set aside orders made on February 26, 2019 and to be granted unconditional leave to defend. The underlying dispute concerned a boundary and access road between the applicant's parcel Nyandarua/Mawingo/2872 and the interested party's parcel Nyandarua/Mawingo/2522. The court had earlier ordered the Land Registrar to define the boundaries under sections 18 and 19 of the Land Registration Act, 2012; the respondent complied and filed a report dated September 3, 2021 confirming a 6m wide access road encroached upon by the interested party. The interested party argued the 2019 orders were made without personal service and without his knowledge, and that his advocates had no instructions in the matter. The court found an affidavit of service showing the firm of Njoroge Mwaura & Co Advocates accepted service as his recognized agent - the same firm that had drawn a 2015 settlement agreement in the related judicial review proceedings. Notice of the site visit was proved by service on his employee and by WhatsApp message delivery and perusal, none of which the interested party specifically denied or tested by cross-examination. The court held personal service is not required in all circumstances where a recognized agent acts. Noting consistent registrar findings of a 6m access road, the court concluded the application was aimed at unlawfully blocking an officially recorded road. The application was dismissed with costs to the applicant.

Key legal issues

#
01

Whether the orders of February 26, 2019 should be set aside for want of personal service and lack of participation

Holding

The application to set aside was dismissed; the interested party was duly served through his advocates as recognized agent and was notified of the site visit by service on his employee and via WhatsApp

Reasoning

The court noted an affidavit of service showing Njoroge Mwaura & Co Advocates, the same firm that drew the September 25, 2015 settlement agreement in the related dispute, accepted service without protest. No evidence showed the firm failed to inform him. Notice of the site visit was proved by service on his employee and a WhatsApp message delivered and read, none of which he specifically denied or tested by cross-examination.

p. 4
02

Whether the respondent's report and the February 26, 2019 order should stand

Holding

The report confirming a 6m wide access road accords with earlier registrar findings and official records; the application was an abuse aimed at grabbing the access road

Reasoning

Previous registrar reports (April 3, 2014 and September 3, 2021) consistently found a 6m wide access road which the interested party had encroached upon. The 2021 report found the road extends to the river per the RIM. The court concluded the interested party sought to block a road existing in official government records, and found no merit in the application.

p. 4
03

Who bears costs of the application

Holding

Costs awarded to the applicant as the successful party

Reasoning

Applying section 27 of the Civil Procedure Act and Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd, costs follow the event unless there is good reason to depart. The court found no good reason why the successful applicant should not get costs.

p. 4

Legal principles established

#
  • Service on a party's recognized agent is valid; personal service is not required in all circumstances
  • Costs follow the event unless the court, for good reason, directs otherwise

Court orders

#
  1. 1.The interested party's notice of motion dated October 21, 2021 is dismissed
  2. 2.Costs of the application awarded to the applicant

Authorities

#

Legislation

  • Constitution of Kenya 2010Article 40
  • Civil Procedure Rules 2010Order 5, Order 10 rule 11, Order 50
  • Land Registration Act, 2012sections 18, 19, 87, 101
  • Environment and Land Court Actsection 3
  • Civil Procedure Act (Cap 21)sections 1A, 1B, 3A, 27, 63(e)

Cases cited (1)

  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd
    [1967] EA 287
Jurisdiction invoked
Environment and Land Court Act, section 3; Land Registration Act, 2012, sections 18 and 19

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kori v District Land Registrar Nyandarua & another (Environment and Land Miscellaneous Application 14 of 2017) [2022] KEELC 3815 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3815/eng@2022-06-23

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