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ELCPartially AllowedEnvironment & Land Case E004 of 2023· [2023] KEELC 20559 (KLR)

Ngugi v Platinum Stac Estates Limited & 4 others

Environment and Land Court
5 October 2023
3,011 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Thika court fixed a land parcel number typo but refused to overturn its injunction, confirming that review fixes errors, not losses.

What this practically means

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Executive summary

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The 1st to 4th Defendants (Applicants) moved the Court by Notice of Motion dated 15/5/2023 seeking review of the orders of 4/5/2023 granting the Plaintiff a temporary injunction, and summons to the Land Registrar Ruiru to produce registry records for Ruiru East Block 1/T.792 and Ruiru East Block 1 (Githunguri) 792. They argued the injunction referenced a non-existent parcel, that the Land Registrar had opened two registers confirming two separate plots, that they were in occupation and constructing with a Kshs 100 Million mortgage facility, and that the site visit reports constituted new and important matter and an error apparent on the face of the record under Order 45 rule 1. The Plaintiff opposed, contending both parcel descriptions refer to the same land and that the application fell short of the review threshold. The 5th Defendant (Land Registrar) confirmed two registers exist but stated there is only one parcel on the ground, indicating double titling. After two locus visits and written submissions, the Court held that review is a statutory power, not an appeal in disguise; the site report information was not new, having been alluded to in the pleadings and obtainable with due diligence; and complaints about the merits of the injunction ruling are matters for appeal. However, the Court accepted that the parcel designated 'T.792' does not exist and corrected the ruling accordingly. Prayer (b) was struck out as abandoned. The application partially succeeded: the ruling was reviewed to read the two existing parcel numbers, the Plaintiff's injunction was granted in terms of prayer 4 of her application dated 10/1/2023, and costs were awarded in the cause.

Key legal issues

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01

Whether the site visit reports and Land Registrar's documents constitute discovery of new and important matter warranting review

Holding

No - the information was not new; it had been alluded to in the pleadings and was obtainable with reasonable diligence from the 5th Respondent's records

Reasoning

The Court found all reports agreed there were two titles over the same parcel, confirming double titling already pleaded. Even if treated as new, the Applicants failed to show the documents could not have been obtained earlier with due diligence, since the 5th Respondent always possessed them. Further, the material would not have altered the outcome of the 4/5/2023 ruling.

02

Whether the alleged non-existent parcel reference (Ruiru East Block 1 (Githunguri) T.792) is an error apparent on the face of the record

Holding

Yes - to that limited extent the ruling was corrected to refer to the two existing parcels

Reasoning

The reports established that the parcel designated with the letter 'T' does not exist and no party claims it. The Court accepted this as an error on the record and corrected the reference to read the two existing parcels, Ruiru East Block 1/T.792 and Ruiru East Block 1 (Githunguri) 792.

p. 5
03

Whether the 5th Respondent's complaint that the Court misapplied the Giella injunction parameters is a ground for review

Holding

No - complaints about the merits of the decision are matters for appeal, not review

Reasoning

The 5th Respondent argued the Court failed to determine irreparable injury under Giella v Cassman Brown. The Court held that such complaints go to the merits of the decision and can only be pursued on appeal; review jurisdiction cannot be used to re-argue the correctness of the earlier ruling.

p. 5

Legal principles established

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  • Review is not an appeal in disguise; the power to review corrects a mistake and cannot be used to substitute a different view
  • An error apparent on the face of the record must be obvious and self-evident, not one detected by long reasoning
  • New evidence for review must be such that, if believed, it might have altered the judgment, and the applicant must have acted with due diligence

Court orders

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  1. 1.The Ruling reviewed to read Land Reference No. Ruiru East Block 1/T.792 and Ruiru East Block 1 (Githunguri) 792
  2. 2.Application granted in terms of prayer 4 of the Application dated 10/1/2023
  3. 3.Temporary injunction issued against the Respondents from further construction, building, depositing building materials or interfering with the Plaintiff's quiet possession on Ruiru East Block 1(githunguri)792 and/or Ruiru East Block 1/T.792 pending hearing and determination of the suit
  4. 4.Costs in the cause
  5. 5.Prayer (b) of the Notice of Motion dated 15/5/2023 (summons to the Land Registrar) struck out as abandoned

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule 1

Cases cited (4)

  • Anwar Ali & Another v Monica Muthoni & Another
    [2021] eKLR

    Review cannot be founded merely on dissatisfaction with a remedy granted in an order; alternative remedies may exist

  • Giella v Cassman Brown & Co Limited
    (1973) EA 358

    Parameters for interim injunction: prima facie case, irreparable injury, balance of convenience

  • Brown v Dean
    (1910) AC 373

    New evidence on review must be presumably believable and, if believed, conclusive

  • West Bengal v Kamal Sengupta
    AIR 2009 SC 476

    Error apparent on the face of the record must be evident per se and not require long debate or reasoning

Jurisdiction invoked
Order 45 rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Ngugi v Platinum Stac Estates Limited & 4 others", Case Analysis (2023). Environment & Land Case E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20559/eng@2023-10-05

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