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ELCDismissedEnvironment & Land Case 116 of 2009· [2023] KEELC 21489 (KLR)

Antony Muthoka Kitavi alias Muthoka Kitabi & another v Church of Jesus Christ of Latter-Day Saints-Kenya Registered Trustees & 10 others

Environment and Land Court
14 November 2023
ANA. Nyukuri
4,979 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed an attempt to overturn a 2017 land judgment, confirming that occupation and allotment letters cannot defeat a registered title in Kenya.

What this practically means

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Executive summary

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The 10th Defendant and an intended interested party moved the Environment and Land Court at Machakos by Notice of Motion dated 21st November 2022 seeking joinder of the 2nd Applicant, setting aside the judgment of 9th November 2017, leave to file responses, and injunctions restraining the 1st Respondent from evicting them or developing the suit property. The Applicants, administrators of the estate of Jesse Kitavi Musembi, claimed a 2.5-acre portion of Plot 337/1632 based on a 1970 document from Athi River Urban Council and a 2011 taskforce report, alleging they only learnt of the suit in October 2022. The 1st Respondent, registered proprietor since 2006, opposed, showing all Defendants were served by substituted service in the Daily Nation on 9th July 2009, that ten Defendants defended the suit, and that the Applicants had opposed its wall construction in 2008 and negotiated with it from 2014. The court framed two issues: justification for setting aside the judgment and joinder of the 2nd Applicant. It held service was lawful and effective, the Applicants were dishonest and had long been aware of the suit, and the judgment was regular. Even so, interrogating the draft defence, it found the 1970 document was a Temporary Occupation Licence conferring no title, the taskforce report conferred no ownership, and no fraud was pleaded against the registered title under Section 26 of the Land Registration Act, so no triable issue existed. Joinder was refused as the 2nd Applicant came too late. The application was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Whether the judgment of 9th November 2017 should be set aside

Holding

Application refused; service was lawful and the judgment regular, and no triable issue was disclosed

Reasoning

The court found the Applicants were aware of the suit from 2008, having opposed the 1st Respondent's wall construction and participated in negotiations from 2014. Substituted service by advertisement was lawful. The draft defence rested on a TOL and taskforce report, neither conferring title, so no prima facie defence on the merits existed.

02

Whether the 2nd Applicant should be joined as an interested party

Holding

Joinder refused; he came too late and his claim discloses no triable issue

Reasoning

Order 1 Rule 10(2) permits joinder where necessary for determining real issues. The 2nd Applicant's claim was identical to the estate's claim already found to disclose no triable issue, and he was aware of the suit since 2008 yet did not seek joinder until 2022.

p. 9
03

Whether the Applicants' documents confer any title to the suit property

Holding

No; the TOL is not an allotment letter and confers no ownership, and the taskforce report cannot confer ownership

Reasoning

The 1970 document was a Temporary Occupation Licence prohibiting buildings and subdivision, conferring no title. The taskforce report lacked any basis for its findings and had no legal effect. The 1st Respondent's title under Section 26 of the Land Registration Act was unimpeached, no fraud having been pleaded.

p. 8

Legal principles established

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  • Substituted service by advertisement is a lawful and effective mode of service
  • A Temporary Occupation Licence confers no ownership and an allotment letter alone is merely an offer and does not confer title
  • Occupation per se, without legal entitlement, cannot confer ownership against a registered proprietor
  • A regular ex parte judgment will not usually be set aside unless a defence on the merits is shown

Court orders

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  1. 1.The application dated 21st November 2022 is dismissed
  2. 2.Costs of the application awarded to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 5 Rule 17
  • Civil Procedure Rules (repealed)Order 5
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 42
  • Land Registration ActSection 26
  • Constitution of KenyaArticle 159

Cases cited (12)

  • John Harun Mwau v Simone Hayson & 2 Others; Attorney General & 2 Others (Interested Parties)
    (2021)

    Necessary party where one owns the suit property

  • Ephraim Njugu Njeru v Justine Bedan Njoka Muturi & 2 Others
    [2006] eKLR

    Service by advertisement where parties were on the suit property

  • Giella v Cassman Brown Co. Ltd
    [1973] EA 358

    Threshold for temporary injunction

  • David Wepukhulu Kasambula & Another v Robert Sundwa Wangolo
    [2018] eKLR

    No procedure for setting aside a final judgment; review or appeal is the remedy

  • Kenya Power and Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints
    [2016] eKLR

    Same proposition on setting aside final judgments

  • Shadrack Kuria Kimani v Stephen Gitau Nganga & Another
    [2017] eKLR

    Protection of registered proprietor's title under Section 26 Land Registration Act

  • Silas Kithiira v Timothy Mugambi
    [2021] eKLR

    Substituted service is as effectual as personal service

  • Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited
    [2014] eKLR

    Inordinate delay in bringing application

  • Patrick Gathenya v Esther Njoki Rugiri & Another
    [2008] eKLR

    There must be an end to litigation

  • Yooshin Engineering Corporation v Aia Architects Limited
    Civil Appeal E074 of 2022

    Meaning of judicial discretion

  • Shah v Mbogo
    [1969] E.A. 116

    Purpose of discretion to set aside ex parte judgment

  • Mureithi Charles & Another v Jacob Atina Nyagesuka
    [2022] eKLR

    Regular judgment not set aside absent a defence on the merits

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; Article 159 of the Constitution invoked on substantive justice

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, "Antony Muthoka Kitavi alias Muthoka Kitabi & another v Church of Jesus Christ of Latter-Day Saints-Kenya Registered Trustees & 10 others", Case Analysis (2023). Environment & Land Case 116 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21489/eng@2023-11-14

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