Obiba v Bwire & 6 others
The bottom line
#A Kenyan court enforced a land judgment despite the wrong procedure being used, giving the losing parties 45 days to transfer 1.2 hectares.
What this practically means
#Executive summary
#Key legal issues
#Whether review under section 80 CPA and Order 45 rule 1(1) was available to the plaintiff
Not available; the plaintiff was not aggrieved by a judgment in his favour and showed no ground for review
Section 80 and Order 45 rule 1(1) aid a party aggrieved by a decree or order who demonstrates discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason. The judgment was in the plaintiff's favour and he identified none of these grounds; his complaint was merely non-compliance by the defendants.
Whether the court could nonetheless grant the substantive relief
Yes, under section 3A of the Civil Procedure Act, Order 51 rule 10(2) and article 159(2)(a) of the Constitution, allowing the motion on terms
Although the wrong procedure was invoked, the inherent power of the court to make orders necessary for the ends of justice applies, and no application should be defeated on a technicality. Without execution of documents and surrender of the title, the judgment would be rendered hollow, so the court granted the relief with a 45-day compliance window and default machinery.
Whether the plaintiff proved that the 5th defendant and Kaloyi Oloo had declined to execute documents
No; the claim appeared only in counsel's submissions, which are not evidence
The supporting affidavit did not depose that documents were submitted to the 5th defendant and Kaloyi Oloo who declined to execute them. The assertion appeared only in Mr Ouma's submissions, and citing Daniel Toroitich arap Moi v Mwangi Stephen Muriithi, the court held submissions are not evidence; an affidavit by the plaintiff or land registrar was required.
Legal principles established
#- Submissions by counsel are not evidence upon which a court can base its decision; cogent evidence by affidavit is required
- A judgment must be complied with unless appealed, reviewed or set aside
- A court may invoke its inherent power under section 3A of the Civil Procedure Act to make orders necessary for the ends of justice even where a party cites the wrong procedure
Court orders
#- 1.The 5th defendant and Kaloyi Oloo to surrender the original title deed in respect of land parcel No Bunyala/Bulemia/309 to the Land Registrar Busia within 45 days from the date of the ruling and execute all necessary documents to facilitate transfer of a portion measuring 1.2 Hectares to the plaintiff
- 2.In default, the Land Registrar Busia at liberty to sub-divide the parcel and register a portion measuring 1.2 Hectares in the plaintiff's name notwithstanding the absence of the original title deed
- 3.The Deputy Registrar, after lapse of 45 days, at liberty to execute all relevant documents on behalf of the 5th defendant and Kaloyi Oloo to facilitate transfer and registration of the 1.2 Hectares portion in the plaintiff's name
- 4.No orders as to costs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review), with residual jurisdiction under section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Obiba v Bwire & 6 others", Case Analysis (2022). Environment & Land Case 29 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15262/eng@2022-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.