Wafulai v Lusindalo
The bottom line
#A Kenyan landowner who implemented a court judgment his own way lost the resulting titles and must pay the other side's costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the alleged discovery of the altered mutation forms was a new and important matter justifying review
The mutation issue itself was before the court in the 29/01/2021 application, but the fact that the mutation produced a positioning of parcels different from what the court and parties knew was new knowledge unavailable to the judge at the time
The court compared the earlier application, which concerned nullification of titles obtained via a private surveyor's mutation, with the present one. It found the mutation question was squarely before the court previously, but the end result - displacement of the plaintiff from where he was shown and settled - was new knowledge not available to the learned judge when the impugned ruling was made.
Whether the defendant's implementation of the judgment contrary to its terms amounted to sufficient reason for review
Yes - the mutation was effected by a private surveyor contrary to the judgment, which required the District/County Surveyor to give effect to the mutation form; this was sufficient reason under Order 45 Rule 1
The judgment of 31/05/2018 directed the District Surveyor, Trans Nzoia, to give effect to the drawing on the mutation form. The parties admitted the mutation was done by a private surveyor, contrary to the judgment, which was never appealed or reviewed. The court invoked Sections 1A, 1B and 3A and the inherent power to declare the mutation null and void.
Whether the delay of almost two years in bringing the application was fatal
No - the plaintiff gave a good reason for the delay, having discovered the true position upon receipt of the defendant's advocate's letter of 02/06/2023
Neither party argued delay. The court accepted, on the uncontroverted oath of the plaintiff, that he peacefully resided on and developed the parcel until served with the letter demanding vacation, which revealed the altered mutation. That letter was the trigger for the application, explaining the delay.
Legal principles established
#- A fact stated on oath and not responded to on oath cannot be refuted by submissions
- Implementation of a court judgment contrary to the judgment itself constitutes sufficient reason for review under Order 45 Rule 1
Court orders
#- 1.The orders of 29/01/2021 (ruling of 29/06/2021) are reviewed
- 2.The titles issued pursuant to the mutation prepared and signed contrary to the judgment of the Court are cancelled
- 3.The County Surveyor in charge of Trans Nzoia County to give effect to the mutation form contemplated in paragraph (b) of the judgment
- 4.The mutation carried out on the original parcel of land No. 195 contrary to the order of the court is declared null and void and of no effect
- 5.The Respondent shall bear the costs of the application
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act and Order 45 Rules 1, 2, 3, 4 and 5 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafulai v Lusindalo", Case Analysis (2023). Environment and Land Case 102 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21841/eng@2023-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.