Amolo & 3 others v Chunga & 4 others
The bottom line
#A Kenyan court cancelled land subdivisions made after a lawsuit ended, restoring the original parcel so the winning party could actually enforce their judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to annex a decree renders a review application incompetent
It does not; the motion was competently before the court.
Order 45 Rule 1 does not expressly require a decree to be annexed. Following Peter Kirika Githaiga v Betty Rashid, where the party can direct the court's attention to the part of the judgment complained of and the decree is on the court file, the application is not fatally defective. The orders sought were clearly set out in the motion.
Whether the plaintiffs met the Order 45 Rule 1 threshold for review
Yes; the post-judgment subdivision of the suit property was discovery of new and important matter.
The suit property was subdivided on 27/1/2023 after the matter was reserved for judgment, unknown to the court and plaintiffs. The defendants breached lis pendens, purportedly implementing a confirmation of grant they had slept on for four years; their conduct was abuse of court process and a mockery of justice.
What orders should issue to give effect to the judgment of 16/02/2023
Cancellation of the subdivisions and reversion of the land to North Sakwa/Maranda/40, then execution of the original decree.
The plaintiffs' sought excision from parcel 4317 was untenable as it was a different parcel from that determined. Exercising inherent powers under Section 3A CPA and Section 3 ELC Act, the court fashioned a remedy restoring the original parcel so the decree could be enforced.
Legal principles established
#- An application for review is not fatally defective merely because a formal decree was not annexed, where the party directs the court to the part of the judgment complained of.
- Subdivision of suit property after judgment was reserved, in breach of lis pendens, constitutes discovery of new and important matter warranting review under Order 45 Rule 1.
- A court possesses inherent jurisdiction to fashion appropriate remedies to meet the ends of justice even where the law is silent.
Court orders
#- 1.The District Land Surveyor-Bondo or any other designated officer to amend the Registry Index Map and revert it to the previous RIM, and the Land Registrar-Bondo to cancel the subdivisions known as North Sakwa/Maranda/4317, 4318, 4319, 4320, 4321 and 4322 so the land reverts to North Sakwa/Maranda/40.
- 2.Upon compliance with order (a), the sequence of events envisaged in orders (b) and (c) of the judgment of 16/02/2023 shall be commenced to ensure full execution of the decree.
- 3.The defendants to bear the costs of the notice of motion and those of the District Land Surveyor-Bondo or designated officer and the Land Registrar-Bondo.
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 40 Rules 1 and 4 and Order 45 of the Civil Procedure Rules; Section 3 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amolo & 3 others v Chunga & 4 others", Case Analysis (2023). Environment & Land Case E005 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18274/eng@2023-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.