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ELCAllowedEnvironment & Land Case 237 of 2017· [2022] KEELC 13491 (KLR)

Kirori (Suing as the Administrator of the estate of Kirori Ngumba (deceased) v Kirori & another; Kanyagia & 2 others (Interested Parties)

Environment and Land Court of Kenya
17 October 2022
1,553 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court threw out a flawed consent order that tried to transfer land belonging to people who were never part of the case.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (B M Eboso J) dealt with an application dated April 14, 2022 by Patrick Mungai Kanyagia, Rosemary Wambui Kanyagia and Summerfields Heights Limited seeking to be joined as interested parties and to set aside a consent order dated February 6, 2017, together with all consequential orders. The consent order, filed by Ngure Mbugua & Co Advocates and adopted by Gacheru J on September 28, 2017, had distributed the immovable properties of the estate of Kirori Ngumba (deceased) among five named individuals and marked the suit as settled. Subsequent applications led to orders for registration of Stephen Kanyi Kirori as absolute proprietor of certain titles. The applicants contended the consent was irregularly procured through non-disclosure that they were already registered proprietors of LR Nos 13537/754, 755, 756 and 757, having acquired titles for valuable consideration. The court identified serious defects in the consent: the plaintiff's advocates signed on one part; the five individual signatories were not parties to the suit; the defendants were not signatories; and the consent purported to vest land registered in the names of non-parties. Counsel for the plaintiff conceded to the setting aside of the consent, and counsel for the applicants raised no objection. The court allowed the application, set aside the consent order and all consequential orders, admitted the applicants as 3rd, 4th and 5th defendants, directed amendment of the plaint, and gave the plaintiff 12 months from the 2nd defendant's death to decide whether to pursue the claim against her, noting the claim against the 1st defendant had abated in 2016.

Key legal issues

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01

Validity of the consent order of February 6, 2017

Holding

The consent order was fatally irregular and was set aside with the plaintiff's own concession

Reasoning

The court identified three defects: the plaintiff's advocates executed the consent on one part; the five individuals who signed on the other part were not parties to the suit; the defendants were not signatories; and the consent purported to vest parcels registered in the names of non-parties. Counsel for the plaintiff readily conceded to setting it aside, and the court allowed the application.

p. 4
02

Joinder of the applicants as parties

Holding

The applicants, being registered proprietors of some of the suit parcels, were admitted as 3rd, 4th and 5th defendants

Reasoning

The applicants claimed to have legitimately acquired titles to LR Nos 13537/754, 755, 756 and 757 for valuable consideration before and since the filing of the suit. The plaintiff raised no objection to their joinder, and the court admitted them as defendants, directing amendment of the plaint.

p. 3

Legal principles established

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  • A consent order cannot validly vest land registered in the names of third parties who were not parties to the suit

Court orders

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  1. 1.The consent order dated February 6, 2017, recorded by the Deputy Registrar and adopted by Gacheru J on September 28, 2017, together with all subsequent consequential orders, are set aside
  2. 2.Patrick Mungai Kanyagia, Rosemary Wambui Kanyagia and M/s Summerfields Heights Limited admitted to the suit as 3rd, 4th and 5th defendants respectively
  3. 3.The plaintiff to amend the plaint to incorporate the added parties
  4. 4.The plaintiff has the statutory period of 12 months from the date of death of the 2nd defendant to decide whether to pursue the claim against her
  5. 5.The court noted that the claim against the 1st defendant, who died in 2015 prior to filing of the impugned consent, abated in 2016
  6. 6.Matter to be given a mention date at the time of rendering the ruling

Authorities

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Legislation

  • Land Registration ActSection 70(d)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes; inherent power to set aside consent orders and admit parties

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, "Kirori (Suing as the Administrator of the estate of Kirori Ngumba (deceased) v Kirori & another; Kanyagia & 2 others (Interested Parties)", Case Analysis (2022). Environment & Land Case 237 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13491/eng@2022-10-17

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