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ELCPartially AllowedEnvironment and Land Appeal 93 of 2019· [2023] KEELC 16847 (KLR)

Karuku Njau v Kabiru Muiruri

Environment and Land Court of Kenya
18 April 2023
SOS. O. Okong'o
5,668 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 cancelled illegally issued land titles and ordered Dagoretti/Mutuini/95 partitioned afresh per the elders' award.

What this practically means

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Executive summary

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The Respondent (Kabiru Muiruri) sued the Appellant (Karuku Njau) in 1985 over Dagoretti/Muituini/95. The dispute was referred to a panel of elders chaired by the District Officer, Dagoretti, whose award of 1st October 1985 - adopted by the court - directed the property be shared 1/6 to the Appellant, 1/3 to John Goro (deceased) and 1/2 to the Respondent. Enforcement orders were made on 21st March 1986, but a second, disputed order of the same date led to a 1991 title deed recording shares of 48/290, 47/290 and 195/290, which the Appellant alleged was fraudulently procured. In 2018 the Respondent applied for the Senior Executive Officer to sign a mutation form subdividing the property into 9 portions giving him 1.690 acres. The trial magistrate (Hon. G.A. Mmasi, SPM) allowed the application on 22nd November 2018 without investigating the fraud allegation. On appeal, S.O. Okong'o J held that the lower court misdirected itself under section 98 of the Civil Procedure Act: the mutation and the 1991 title had no basis in any court order, the title was illegal and null and void notwithstanding its non-cancellation, and the 2018 application was res judicata and filed in bad faith. The appeal was allowed, the ruling of 22nd November 2018 set aside, the Respondent's application dismissed with costs, all titles issued pursuant to the impugned partition cancelled, the Registry Index Map to be amended, and the property to be partitioned afresh into three portions per the elders' award. The Appellant received the costs of the appeal.

Key legal issues

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01

Whether the lower court properly exercised its discretion under section 98 of the Civil Procedure Act

Holding

No; the lower court failed to consider the Appellant's reasons for refusing to sign the mutation form and granted orders not backed by any existing court order

Reasoning

Section 98 is discretionary and requires an existing decree or order which the party has refused to comply with. The mutation form proposed a 9-portion subdivision giving the Respondent 1.690 acres, which no court order supported. The lower court also failed to interrogate the origin of the 1991 title deed despite the fraud allegation raised before it, and erred in telling the Appellant to apply for cancellation of the title.

p. 7
02

Validity of the title deed of 16th June 1991 and the mutation founded on it

Holding

Both the title deed and the mutation form had no basis in the court orders; the title was illegally issued and null and void

Reasoning

Neither of the two orders of 21st March 1986 directed the shares contained in the title deed (48/290, 47/290, 195/290) or the 9-portion subdivision. The Senior Executive Officer's letter of 9th May 1991 had no authority for the altered shares. A void act is a nullity needing no order to set aside (Macfoy), and courts will not aid a party relying on an illegal act.

p. 8
03

Whether the Respondent's 2018 application was res judicata

Holding

Yes; the court had already granted the same orders in 1986, and the fresh application was filed in bad faith to circumvent compliance with the earlier orders

Reasoning

Two earlier orders of 21st March 1986 already authorised the Senior Executive Officer to sign the partition and transfer documents. The Respondent sought the same relief again in 2018. The court found the application res judicata and filed in bad faith, though it did not need to consider all grounds of appeal.

p. 9

Legal principles established

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  • A title issued contrary to the terms of a court order is illegal, null and void; its non-cancellation does not clothe it with validity
  • An applicant under section 98 of the Civil Procedure Act must show an existing decree or order which the respondent has refused to comply with without reasonable cause
  • A court exercising discretion under section 98 may only authorise the executive officer to do what the party was ordered to do but refused
  • No court will lend its aid to a party founding his cause on an illegal act (ex turpi causa)

Court orders

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  1. 1.Orders of Hon. G.A. Mmasi (Mrs.) SPM of 22nd November 2018 set aside and in place thereof the Respondent's Notice of Motion dated 6th July 2018 dismissed with costs to the Appellant
  2. 2.Partitioning of Title No. Dagoretti/Mutuini/95 and transfers pursuant to the order of 22nd November 2018 set aside; all titles issued following the partition exercise cancelled and the status of the title reverted to the position prior to the partition, including any subsequent subdivisions and titles
  3. 3.The Director of Surveys to amend the Registry Index Map (RIM) for Dagoretti Mutuini to cancel the land parcels whose titles have been cancelled
  4. 4.Title No. Dagoretti/Mutuini/95 to be partitioned afresh in accordance with the panel of elders' award adopted by the court: Karuku Njau 1/6, John Goro Njau 1/3, Kabiru Muiruri 1/2 undivided shares
  5. 5.Title No. Dagoretti/Mutuini/95 to be partitioned into 3 portions save where the parties consent to more partitions, with allowance for roads as advised by the surveyor
  6. 6.The Appellant to have the costs of the Appeal

Authorities

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Legislation

  • Civil Procedure ActSection 98
  • Civil Procedure RulesOrder 49 Rule 1
  • Land Disputes Tribunal ActSection 8

Cases cited (5)

  • Macfoy v. United Africa Limited
    [1961] 3 All E.R

    An act that is void is a nullity; no order of court is needed to set it aside

  • Patriotic Guards Ltd v. James Kipchirchir Sambu
    Nairobi CA No. 20 of 2016, [2018] eKLR

    Judicial discretion must be exercised judiciously, on legal principles, not caprice

  • Mbogo v. Shah
    [1968] E.A. 93

    Appellate court will not interfere with discretion of inferior court unless clearly wrong

  • Kenya Pipeline Company Ltd. v. Glencore Energy (UK) Ltd.
    [2015] eKLR

    Courts refuse aid to parties founding claims on illegal acts (ex turpi causa)

  • Holman v. Johnson
    (1775-1802) All ER 98

    No court will lend its aid to a man who founds his cause of action on an illegal act

On appeal from
Senior Resident Magistrate's Court at Nairobi (Milimani Commercial Courts), ELC No. 22 of 1985
ELC No. 22 of 1985 (originally CMCCC No. 22 of 1985 / Civil Case No. 1447 of 1985)
Jurisdiction invoked
First appeal from the subordinate court to the Environment and Land Court under the Environment and Land Court Act

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, "Karuku Njau v Kabiru Muiruri", Case Analysis (2023). Environment and Land Appeal 93 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16847/eng@2023-04-18

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