Nyamu v Marungo (Environment & Land Case 19 of 2018) [2024] KEELC 832 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Right to be heard before an adverse order affecting property
The judgment cancelling the Applicants' titles without joining or hearing them offended the rules of natural justice and Articles 48, 50(1) and 47 of the Constitution.
The Applicants were registered owners of parcels traceable to the suit land whose titles were annulled by the judgment. Protection of property rights is fundamental, and one's property cannot be taken away without being heard. The court found the Applicants had a genuine legal interest and stake in the proceedings and must be heard before a final decision is made, regardless of whether the same result would follow.
Indefeasibility of title under the Land Registration Act
Upon registration the Applicants were vested with ownership rights under Article 40 and Sections 24, 25 and 26 of the Land Registration Act 2012; their titles could only be annulled through due process where the affected persons are heard.
Section 26(1) of the Land Registration Act 2012 makes a certificate of title prima facie evidence of absolute and indefeasible ownership, subject to challenge only 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. Even then, the title holder must be afforded a hearing before cancellation.
Joinder of necessary parties and effect of the Plaintiff's omission
The Applicants were necessary and appropriate parties; the Plaintiff knew or ought to have known of their registrations, and his earlier joinder application was declined for delay.
The Plaintiff filed abstracts of title showing the subdivisions and transfers to third parties before filing suit, yet did not join the registered owners. His Notice of Motion dated 24th June 2021 seeking to join them was declined on 10/12/2021 for being made too late, and the Applicants were never served. Their titles were nonetheless directly challenged by the relief sought.
Legal principles established
#- A registered proprietor's title is prima facie absolute and indefeasible and can only be challenged on limited grounds, and a title holder must be accorded an opportunity to be heard before his title can be cancelled or annulled.
- Necessary and appropriate parties whose titles are directly in question must be joined so that all issues can be fully and finally adjudicated.
Court orders
#- 1.The Judgment delivered on 30th May 2023 together with all consequential orders thereof is set aside
- 2.John Waweru Githandika, Benson Gichohi Mutahi, Mwangi Nduma Gichuru, Peter Njagi Mathagu and Stephen Mugo Toto are joined as the 1st, 2nd, 3rd, 4th and 5th Interested Parties respectively
- 3.The Interested Parties have leave within Twenty-one days to file their pleadings and documents
- 4.The Plaintiff has leave of 21 days from expiry of the first period to file any response to the Interested Parties' pleadings
- 5.The matter is fixed for mention for directions on 8th May 2024
- 6.Each party to bear their own costs of the applications
- Jurisdiction invoked
- Order 45 Rule 1, Order 46 Rule 6 and Section 80 of the Civil Procedure Act; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyamu v Marungo (Environment & Land Case 19 of 2018) [2024] KEELC 832 (KLR)", Case Analysis (2024). Environment & Land Case 19 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/832/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.