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ELCPartially AllowedMiscellaneous Application E050 of 2022· [2023] KEELC 16418 (KLR)

Kariuki v Harunani & another; Chief Land Registrar (Interested Party)

Environment and Land Court at Nairobi
9 March 2023
8,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landlord won an eviction after serving the required three-month Land Act notice, and the court flagged the occupants' title documents as likely forgeries.

What this practically means

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Executive summary

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The applicant, George Njoroge Kariuki, moved the Environment and Land Court by Amended Notice of Motion dated 25th May 2022 seeking eviction of the 1st Respondent, Suleiman Abdulshakur Harunani, the 2nd Respondent, Karura Investment Limited, and their agents from L.R. No. 12422/319, with Vince Hamilton Auctioneers to conduct the eviction and the OCPD Kasarani to provide security. He relied on a 25-year lease with the 1st Respondent expiring on 15th October 2021, a notification and eviction notice served on the occupant, the DCC and the OCPD, and documentary evidence of his title. The Respondents and the Chief Land Registrar (Interested Party) opposed, contending the 2nd Respondent was the registered owner since 1993, that the lease signatures were forgeries, that the Court of Appeal had confirmed the 2nd Respondent's ownership, and that a miscellaneous application was procedurally improper. The court held that the Land Act does not clearly prescribe how a party should approach the court under sections 152A-152H, so a notice of motion was permissible provided the affected party is heard. It found the applicant complied with the statutory eviction procedure, that service on the 1st Respondent sufficed given the 2nd Respondent's joinder and relationship with the 1st Respondent, and that the Respondents' title documents bore indicia of forgery, including same-day registrations two minutes apart and a transfer referring to a different parcel. The prior Magugu decisions were distinguished as decided on preliminary objections without the applicant as party. The application was allowed in terms of prayers 2, 3 and 4, with no orders as to costs.

Key legal issues

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01

Compliance with the statutory eviction procedure under the Land Act

Holding

The applicant complied with Sections 152A, 152B, 152E and 152G by serving a three-month eviction notice on the 1st Respondent, the Deputy County Commissioner and the OCPD, and the application was allowed in terms of prayers 2, 3 and 4.

Reasoning

The court found the eviction notice dated 18th October 2021 was served together with the letter dated 1st October 2021 and copied to the DCC and OCPD. Service on the 1st Respondent was undisputed. The 2nd Respondent, having applied to be joined and actively participated, could not distance itself from its relationship with the 1st Respondent on the ground that no notice was served on it.

p. 14
02

Mode of instituting the proceedings - notice of motion versus plaint

Holding

The applicant could not be faulted for instituting the matter by way of a miscellaneous application/notice of motion since the Land Act does not clearly prescribe the procedure, and the issue had already been addressed in the ruling on the preliminary objection.

Reasoning

The court noted that from a reading of Sections 152A and 152E of the Land Act it is not clear how a party ought to approach the court for relief. Relying on Abdi Abdulahi Sinko v Ben Chikamai, it held that a notice of motion is proper where the specific procedure is not clearly stipulated, and what matters is that the affected party is heard.

p. 11
03

Authenticity of the parties' competing titles and documents

Holding

The Respondents' title and transfer documents bore the hallmarks of forgery - registration two minutes apart on the same day, a transfer referring to a different parcel (IR No 60756), and pen amendments - while the applicant's deed plan was certified by the Director of Surveys.

Reasoning

The court perused the titles and transfer and found the chronology implausible: the mother title registered at 11.25Hrs and the resultant title and transfer at 11.27Hrs on 25th October 1993. The National Land Commission's verified report and the uncontroverted parliamentary Hansard on the missing deed file supported the applicant's case, and the Respondents and Interested Party failed to counter these averments.

p. 13
04

Effect of prior Court of Appeal and High Court decisions on ownership

Holding

The prior decisions in the Magugu cases were decided on preliminary objections of law, did not delve into evidence or ownership, and the applicant was never a party to them; they could not establish the 2nd Respondent's ownership.

Reasoning

The court perused the decisions in Margaret Wairimu Magugu v Karura Investment Limited (2017 and 2019) and agreed with the applicant that both were decided purely on a preliminary objection and that the applicant, as owner of the suit property, was never a party to those matters.

p. 12

Legal principles established

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  • Where the specific procedure for approaching the court is not clearly stipulated, a suit may properly be instituted by way of notice of motion, provided the affected party is accorded an opportunity to be heard.
  • An owner seeking eviction under section 152E of the Land Act must serve an eviction notice of not less than three months on the occupant, the Deputy County Commissioner and the Officer Commanding Police Division.

Court orders

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  1. 1.Application dated 25th May 2022 allowed in terms of prayers 2, 3 and 4
  2. 2.Order of eviction issued against Suleiman Abdulshakur Harunani, Karura Investments Limited and their agents and/or servants from L.R. Number 12422/319
  3. 3.Messrs Vince Hamilton Auctioneers directed to conduct the eviction exercise
  4. 4.Officer Commanding Police Division, Kasarani directed to provide security during the eviction and maintain law and order
  5. 5.No orders as to costs

Authorities

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Legislation

  • Land ActSections 152A, 152B, 152C, 152D, 152E, 152G, 153E
  • Land Laws (Amendment) ActNo. 28 of 2016 (also referred to as No. 26 of 2016)
  • Civil Procedure RulesOrder 3 Rule 1

Cases cited (13)

  • Margaret Karwirwa vs Francis Koffi (2019) eKLR
    (2019) eKLR

    Good practice that the respondent be served on a section 152E application even if ex-parte is implied

  • Chon Jeuk Suk Kim & Another vs E.J. Austin & 2 others (2013) eKLR
    (2013) eKLR

    Requirements of a valid lease constituting an enforceable contract

  • David Morton Silverstein v Atsango Chesoni [2002] eKLR
    [2002] eKLR

    Principles supporting the court's jurisdiction to issue the orders sought

  • Moi Education Centre Co. Ltd v William Musembi & 16 others [2017] eKLR
    [2017] eKLR

    Court's jurisdiction to issue eviction orders sought

  • Kagina v Kagina & 2 Others (Civil Appeal 21 of 2017) [2021] keca 242 (KLR)
    [2021] keca 242 (KLR)

    Court is not bound by expert testimony and must subject it to analysis

  • Abdi Abdulahi Sinko vs Ben Chikamai & 2 Others (2016) eKLR
    (2016) eKLR

    A suit may be instituted by notice of motion where the specific procedure is not clearly stipulated

  • Lynette Nasimiyu Wafula –Vs- David Mwangi & 4 others (2022) eKLR
    (2022) eKLR

    Cited by 2nd Respondent against institution by miscellaneous application

  • Rajab Kosgei Magut –Vs- Nuru Jepleting Choge (2020) eKLR
    (2020) eKLR

    Cited by 2nd Respondent against institution by miscellaneous application

  • Stephen Mkalla Ngome & 10 others –Vs- Agnes Mutinda Ndetei & Another (2021) eKLR
    (2021) eKLR

    Cited by 2nd Respondent against institution by miscellaneous application

  • Wambui Gikuwa –Vs- Paul Kimeri Muraba (2017) eKLR
    (2017) eKLR

    Cited by 2nd Respondent against institution by miscellaneous application

  • Julius L. Maten –Vs- Caleb Arap Rotic (2021) eKLR
    (2021) eKLR

    Cited by 2nd Respondent against institution by miscellaneous application

  • Margaret Wairimu Magugu –Vs- Karura Investment Limited & 4 others (2019) eKLR
    (2019) eKLR

    Prior decision on suit property, decided on preliminary objection only

  • Margaret Wairimu Magugu (suing as the administratix of the estate of the late Arthur K.Magugu) –Vs- Karura Investment Limited & 4 others (2017)

    Prior decision on suit property, decided on preliminary objection only

Jurisdiction invoked
Sections 152A, 152B, 152E and 152G of the Land Act as amended by the Land Laws (Amendment) Act No. 28 of 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kariuki v Harunani & another; Chief Land Registrar (Interested Party)", Case Analysis (2023). Miscellaneous Application E050 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16418/eng@2023-03-09

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