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ELCAllowedNot stated in the judgment (ELC suit at Kerugoya)· [2024] KEELC 1201 (KLR)

Muchiri & another v Njuguna; Wambua & 4 others (Interested Parties) (Environment & Land Case 129 of 2017) [2024] KEELC 1201 (KLR)

Environment and Land Court
7 March 2024
JMJ. M. Mutungi
3,273 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The court cancelled land titles created through a dishonest agreement that hid an existing court order, showing Kenyan courts will undo deals that defeat creditors.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kerugoya (J. M. Mutungi, ELC Judge) on a Notice of Motion dated 23rd January 2023 by Mueni Wambua, the decree-holder in Embu CMCC No. 125 of 2005, in which she obtained judgment of Kshs. 882,200 with interest at 35% per annum against Stephen Muchiri Njuguna, the Defendant in the Kerugoya suit. In execution she attached land parcel Mutira/Kaguyu/4708 and a prohibitory order was registered against it. Objection proceedings by the family failed, and a conditional stay lapsed for non-compliance. The Plaintiffs and the Defendant then entered a consent on 20th September 2017, endorsed on 3rd October 2017, lifting the prohibitory order and declaring the Defendant held the land in trust for his family, sharing it out; the land was later subdivided into Mutira/Kaguyu/5958–5961. The Applicant sought review of that order, cancellation of the resultant titles, and joinder. The Respondents opposed, asserting the land was trust land and that subdivision followed a tribunal award. The court framed three issues and held that the consent was fraudulent and collusive, having been procured without disclosing the attachment and prohibitory orders, and misled the Court into setting aside another court's orders. Allowing the application, the court reviewed and set aside the order of 3/10/2017, cancelled and revoked the subdivision and resultant titles, directed the County Land Registrar Kirinyaga to expunge entries 5–7 and reinstate the parcel, joined the Applicant and four others as Interested Parties, fixed the suit for mention, and awarded costs to the Applicant. The suit is to be heard de novo.

Key legal issues

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01

Whether grounds exist to review the consent order of 3rd October 2017

Holding

Review was warranted because the consent was fraudulent and collusive: the parties concealed the existence of attachment and prohibitory orders and misled the Court into adopting the consent.

Reasoning

The court reviewed the record and found the Plaintiffs and Interested Parties were privy to the Embu suit, the appeal, the objection proceedings and the prohibitory order registered against Mutira/Kaguyu/4708. By consenting to have the prohibitory order lifted and to share out the attached land without joining the decree-holder, the parties acted fraudulently and in collusion to defeat execution. The Court was misled into adopting the consent, which effectively set aside orders issued by another court. Sufficient grounds under Order 45 rule 1 and Section 80 CPA were therefore established.

p. 6
02

Whether the Applicant should be joined in the suit

Holding

The Applicant and others were joined as 1st to 5th Interested Parties in the suit, which is to proceed to hearing de novo.

Reasoning

Having an execution-based interest in the suit property through a registered prohibitory order and caution, the Applicant was a necessary party whose absence had enabled the consent to be obtained behind her back. The court joined her together with family members named in the consent order so that the suit, to be heard de novo, could be determined with all interested persons before the court.

p. 7
03

Whether the resultant titles from the subdivision of Mutira/Kaguyu/4708 should be cancelled

Holding

The subdivision and resultant titles Mutira/Kaguyu/5958–5961 were cancelled and the register was to be restored to its pre-3/10/2017 status.

Reasoning

Since the consent order that gave rise to the subdivision was reviewed and set aside as fraudulently obtained, all consequential steps flowing from it fell with it. The Land Registrar was directed to expunge the entries of 9/10/2017 and 7/2/2018 and reinstate the parcel to its original status, effectively restoring the title Mutira/Kaguyu/4708 and preserving the Applicant's ability to execute her decree.

p. 7

Legal principles established

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  • A consent judgment or order carries the same weight as a contract and may only be set aside for fraud, collusion, mistake, absence of material facts or other reason that would justify setting aside an agreement.
  • A prohibitory order registered in execution of a decree cannot be lifted without the consent of the decree-holder or satisfaction of the decree, save by the court that issued it or an appellate court.

Court orders

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  1. 1.The Court order given on 3/10/2017 is reviewed and all consequential orders flowing therefrom are set aside and the suit is ordered to be heard de novo
  2. 2.The subdivision of land parcel Mutira/Kaguyu/4708 and the resultant titles being Mutira/Kaguyu/5958, 5959, 5960 and 5961 are cancelled and revoked forthwith
  3. 3.The County Land Registrar Kirinyaga is directed to cancel and expunge Entry No. 5 of 9/10/2017, Entry No. 6 of 9/10/2017 and Entry No. 7 of 7/2/2018 in the register of land parcel Mutira/Kaguyu/4708 and reinstate the land to its original status prior to the orders of 3/10/2017
  4. 4.The Applicant, Tabitha Wagatwe Njuguna, David Karimi Muchiri, Lydia Wambui and Rosemary Nyaguthi Kabiro are joined as the 1st to 5th Interested Parties in the suit respectively
  5. 5.The suit is fixed for mention on 7/5/2024 for directions
  6. 6.The costs of the application are awarded to the Applicant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 80; Cap. 21
  • Civil Procedure RulesSections 63(c) and (e); Order 40 rules 1, 2, 3(2), 51(1); Order 45 rule 1(a) and (b)
  • Land Registration ActSection 68

Cases cited (5)

  • Brooke Bond Liebig v Mallya
    (1975) EA 266
  • Tropical Food Products International Ltd v East and Southern African Trade and Development Bank (The PTA Bank)
    (2007) eKLR
  • Flora Wasike v Wamboko
    (1982-88) I KAR 625
  • Hiran v Kassam
    (1952) 19 EACA 131
  • Kenya Commercial Bank Limited v Specialized Engineering Co. Limited
    (1982) eKLR 485
Jurisdiction invoked
Inherent jurisdiction of the ELC; review under Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules

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, "Muchiri & another v Njuguna; Wambua & 4 others (Interested Parties) (Environment & Land Case 129 of 2017) [2024] KEELC 1201 (KLR)", Case Analysis (2024). Not stated in the judgment (ELC suit at Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1201/eng@2024-03-07

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