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ELCPartially AllowedEnvironment and Land Appeal E002 of 2023· [2023] KEELC 20799 (KLR)

Njoroge v Githinji & 2 others

Environment and Land Court
19 October 2023
6,042 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court cannot declare who owns land through a miscellaneous application — ownership disputes need a proper suit with full evidence.

What this practically means

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Executive summary

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The appellant appealed against the ruling and order of the Senior Principal Magistrate's Court at Kandara (Hon. M. Sudi) delivered on 21 September 2022 in Miscellaneous ELC No. E023 of 2022, by which the 1st respondent's miscellaneous application for exhumation of the remains of the appellant's son, interred on the suit land, was allowed. The trial court also declared that the suit land belonged to the 1st respondent's deceased husband and devolved to his family. The appellant, who said he was unaware of the exhumation proceedings and claimed ownership, failed in his application for review, prompting this appeal. Gacheru J identified four issues: mootness, the effect of a certificate of title, the nature of disputes suitable for miscellaneous applications, and whether land ownership could be determined on such an application. The court held the exhumation issue was moot since the exhumation had already occurred and orders cannot issue in vain, but the ownership issue was live because of a continuing injury. Relying on section 26 of the Land Registration Act, the court noted title is prima facie indefeasible but challengeable on fraud or illegal acquisition, matters requiring evidence. Critically, the court held that a miscellaneous application is not meant to settle rights or obligations, and the trial court erred in declaring land ownership in such a proceeding, condemning the appellant unheard. The appeal was partially allowed: the declaration of ownership was set aside, the exhumation order stood, and the appellant was directed to move the court appropriately within 30 days, failing which he would be deemed to have waived rights over the land. Each party was to bear their own costs.

Key legal issues

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01

Whether the appeal was overtaken by events (mootness)

Holding

The appeal on the exhumation order was moot as the exhumation had already occurred, but the land ownership issue was not moot because a continuing injury existed

Reasoning

The exhumation had been executed and no stay was in place, so orders setting it aside would be futile and expose the court to ridicule. However, the order declaring ownership continued to affect the appellant's proprietary rights, constituting a continuing injury. Relying on South African authority, the court held mootness is not an absolute bar where the interests of justice require determination.

p. 9
02

Whether land ownership could be determined on a miscellaneous application

Holding

No; the trial court erred in declaring ownership of land in a miscellaneous application, which is not designed to settle substantive rights

Reasoning

Miscellaneous applications are for matters where there is no dispute as to the right, such as advocate-client bill of costs. Exhumation applications presuppose that proprietary rights have already been determined. The trial court's declaration of ownership condemned the appellant unheard and exceeded the proper scope of a miscellaneous application.

p. 3
03

Effect of a certificate of title

Holding

A certificate of title is prima facie evidence of absolute and indefeasible ownership under section 26 of the Land Registration Act, subject to challenge on fraud, misrepresentation, or illegal/unprocedural acquisition

Reasoning

Section 26 of the Land Registration Act confers absolute and indefeasible rights on the registered proprietor, but that right can be taken away on grounds of fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. Ascertaining whether such grounds exist requires the calling of evidence.

04

Role of a first appellate court

Holding

The first appellate court re-evaluates, re-assesses and re-analyses the evidence but must not unnecessarily interfere with the trial court's discretionary powers

Reasoning

Guided by Selle v Associated Motor Boat Co and subsequent authority, the court reiterated its duty to re-evaluate the record and draw its own conclusions. Interference with discretionary decisions is warranted only where the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to consider relevant ones, or the decision is plainly wrong.

p. 6

Legal principles established

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  • A court cannot determine the issue of land ownership on a miscellaneous application; such an application is not meant to settle rights or obligations
  • A court may entertain a matter that is moot where there is a continuing injury
  • Court orders cannot be issued in vain; orders against a matter overtaken by events are not tenable

Court orders

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  1. 1.Order 1 of the orders of the trial court issued on September 21, 2022, declaring Esther Wanjiru Githinji as the owner of the suit land, set aside
  2. 2.The appellant to move the court appropriately for the court to determine the issue of ownership
  3. 3.The impetus of order (ii) does not seek to oust the judgment of any court that might have been properly moved to determine the issue of ownership
  4. 4.The appellant directed to move the court appropriately within 30 days from the date of the judgment, failing which the appellant would be deemed to have waived the right over the suit land
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaIn general
  • Land Registration Actsection 26
  • Public Health Actsection 146
  • Civil Procedure Actsection 78

Cases cited (18)

  • Abok James Odera t/a AJ Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    Civil Appeal 161 of 1999; [2013] KECA 208 (KLR)

    Role of a first appellate court to re-evaluate, re-assess and reanalyse the evidence on the record

  • Joseph Kibowen Chemjor v William C Kisera
    Miscellaneous Case 2 of 2013; [2013] KEELC 140 (KLR)

    Suits under the Land Registration Act must be instituted per the Civil Procedure Act, Order 3 rule 1, by plaint

  • Apungu Arthur Kibira v Independent Electoral & Boundaries Commission & 2 others
    Petition 29 of 2018; [2019] KESC 62 (KLR)

    Appellant must show discretionary decision was based on whim, was prejudicial or capricious

  • Leisure Lodges Limited v Japhet S Asige & another
    Civil Suit 279 of 2004; [2018] KEHC 2848 (KLR)

    An application for review can be entertained after judgment

  • Mombasa Brick & Tiles & 5 others v Arvina Shah & 7 others
    Civil Application 79 of 2018; [2018] eKLR

    Review as one of the applications that can be entertained post-judgment

  • National Assembly of Kenya & another v Institute for Social Accountability & 8 others
    Civil Appeal 92 & 97 of 2015 (Consolidated); [2017] KECA 170 (KLR)

    Mootness doctrine

  • Nguruman Limited v Shompole Group Ranch & Ol Kiramatian Group Ranch
    Civil Application 90 of 2013; [2014] KECA 358 (KLR)

    Inherent power of the court as a safety valve to make orders necessary for the ends of justice

  • Norah Ndunge Henry & Prisca Mwende Ndunda v Abednego Mutisya & Meshack Mutua Ndunda
    Miscellaneous Application E12 of 2021; [2022] KEELC 382 (KLR)

    Definition of what amounts to a suit; mandatory orders cannot issue on a miscellaneous application

  • Okoiti, Okiya Omtatah & another v Council of Governors; Attorney General & 2 others
    Petition 124 of 2015; [2021] KEHC 6919 (KLR)

    Quoting AB v Pridwin Preparatory School on mootness not being an absolute bar

  • Okoyana, Elizabeth v Henry Amwayi Ndete
    Civil Appeal 102 of 2001; [2005] KEHC 2047 (KLR)

    Trial court ought not to have granted exhumation orders on interim before hearing parties viva voce

  • Omtata, Okiya & 2 others v Attorney General & 4 others
    Constitutional Petition E004 of 2022; [2022] eKLR

    Mootness doctrine relied on by the 1st respondent

  • Sonko v County Assembly of Nairobi City & 11 others
    Petition 11 (E008) of 2022; [2022] KESC 76 (KLR)

    First appellate court should accord deference to trial court's conclusions of fact

  • United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd
    Civil Appeal 36 of 1983; [1985] KECA 39 (KLR); [1985] EA 898

    Circumstances in which an appellate court may interfere with a discretionary decision

  • AB and Another v Pridwin Preparatory School and Others
    CCT 294/18 [2020] ZACC 12

    Mootness is not an absolute bar; interests of justice may require deciding a moot issue

  • Judicial Service Commission & Secretary, Judicial Service Commission v Kalpana H. Rawal
    [2015] eKLR

    Right of appeal is a constitutional and statutory right

  • Selle v Associated Motor Boat Co.
    [1968] EA 123

    First appellate court must re-evaluate, reassess and reanalyze the evidence and draw its own conclusions

  • Peter M Kariuki v Attorney General
    [2014] eKLR

    First appellate court's duty to reconsider evidence and draw independent conclusions

  • Langeberg Municipality

    Test for adjudicating a moot matter - discretion exercised per the interests of justice

On appeal from
Senior Principal Magistrate's Court at Kandara
Misc ELC No. E023 of 2022
Jurisdiction invoked
First appellate jurisdiction under section 78 of the Civil Procedure Act over the ruling and order of the Senior Principal Magistrate's Court at Kandara

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Njoroge v Githinji & 2 others", Case Analysis (2023). Environment and Land Appeal E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20799/eng@2023-10-19

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