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ELCDismissedEnvironment & Land Case 238 of 2013· [2023] KEELC 18805 (KLR)

Njonge v Narankaik

Environment and Land Court
13 July 2023
3,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that subdividing disputed land does not erase a valid judgment, and repeated attempts to escape court orders will be blocked.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (L. A. Omollo, J) determined the Defendant's Notice of Motion dated 5th December 2022, by which Julius Narankaik sought declarations that the consent judgment adopted on 31st October 2018 and the Deputy Registrar's directions of 29th August 2022 were unexecutable because land parcel Narok/Cis-Mara/Enabelbel/Enengetia/279 no longer existed, and in the alternative that those orders be reviewed or vacated. The underlying suit was the Plaintiff's 2009 adverse possession claim over thirty acres, settled by a consent judgment adopted on 31st October 2018 entitling the Plaintiff to thirty acres to be excised from the suit parcel. The Defendant had already failed in a 2018 application to set aside the consent, dismissed on 12th June 2019. The court framed three issues: executability, review, and costs. It held the application was a disguised attempt to set aside the consent judgment and circumvent execution, and was res judicata under Section 7 of the Civil Procedure Act, applying the Uhuru Highway Development decision on res judicata as applied to interlocutory applications. On the merits, the court found the suit land still exists, having merely been subdivided into parcels 970, 971 and 972, a subdivision that could be undone if effected after judgment; a valid, unvaried decree therefore remained executable. Review was refused because the Section 80/Order 45 thresholds were unmet, and the Deputy Registrar's orders could only be reviewed by her. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the consent judgment and Deputy Registrar's orders are unexecutable because the suit parcel is non-existent

Holding

The orders are executable; the land exists but was subdivided, and the subdivision can be undone if done after judgment

Reasoning

The court noted the Land Registrar's letter confirming the parcel was subdivided into 970, 971 and 972 with the register closed on 1st April 2010, but held subdivision does not extinguish the land. A valid decree exists, unvaried and unset aside, so execution may proceed. The court also found the application was a disguised attempt to set aside the consent and circumvent execution.

p. 8
02

Whether the application is res judicata

Holding

Yes; a prior application to set aside the same consent judgment was dismissed on 12th June 2019, and Section 7 of the Civil Procedure Act bars a similar fresh application

Reasoning

The defendant had earlier sought to set aside the consent judgment on grounds of illegality, and that application was dismissed on 12th June 2019. Relying on Section 7 of the Civil Procedure Act and the Uhuru Highway Development case, the court held that wider res judicata principles apply to applications within a suit, precluding a second attempt to set aside the same consent.

p. 7
03

Whether the court should review its orders of 31st October 2018 and 29th August 2022

Holding

Review refused; the Section 80/Order 45 criteria were not met, and review of the Deputy Registrar's orders lies before her

Reasoning

The court found the application disguised as review but in substance seeking to set aside the consent judgment. The thresholds of discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason under Section 80 CPA and Order 45 Rule 1 were not demonstrated. The Deputy Registrar's orders could only be reviewed by her.

p. 8

Legal principles established

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  • Wider principles of res judicata apply to applications within a suit; there must be an end to applications of a similar nature
  • A consent judgment remains binding and executable unless set aside or varied; subdivision of the suit land does not render the decree unexecutable
  • Only the officer who made an order (here the Deputy Registrar) can review it

Court orders

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  1. 1.The Defendant/Applicant's Notice of Motion application dated 5th December, 2022 is dismissed with costs to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 51

Cases cited (6)

  • B vs Attorney General
    [2004] lKLR 431

    Cited by the Defendant on orders exposing the court to ridicule where the subject matter no longer exists

  • Wildlife Lodges Ltd vs County Council of Narok & Another
    [2005] 2EA 344 HCK

    Cited by the Defendant on spent orders and ridicule to the court

  • Kericho Guest House Enterprises Limited v Kenya Breweries Limited
    [2018] eKLR

    Cited by the Plaintiff on the threshold for reviewing a consent order

  • Board of Trustees National Social Security Fund vs Michael Mwalo
    [2015]

    Cited by the Plaintiff on setting aside consent orders

  • Kenya Commercial Bank v Specialized Engineering Co. Ltd
    [1982] KLR 485

    Cited by the Plaintiff on sufficient grounds required to set aside a consent order

  • Uhuru Highway Development Limited v Central Bank of Kenya & 2 others
    [1996] eKLR

    Wider principles of res judicata apply to applications within a suit; there must be an end to litigation

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; application under Order 51 of the Civil Procedure Rules

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, "Njonge v Narankaik", Case Analysis (2023). Environment & Land Case 238 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18805/eng@2023-07-13

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