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ELCOtherNot stated in the judgment· [2024] KEELC 4513 (KLR)

Kidunga & 8 others (Suing on Their Behalf and on Behalf of Squatters/ Residents of Vikwatani Estate Residing Upon the Suit Property/ Plot No. 180/II/MN Title No. CR.613 Numbering 123 People Whose Names Appears in the Schedule of List of Members of Hakikisho Development Group attached to the Originating Summons Herein) v Shafi & 3 others (Environment and Land Case Civil Suit 64 of 2015) [2024] KEELC 4513 (KLR)

Environment and Land Court
20 March 2024
6,013 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court set aside a 2021 land judgment because the awarded land plot had been subdivided years earlier and no longer existed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) arose from the Land Registrar, Mombasa's inability to execute the decree in an adverse-possession suit decided by Justice Yano on 19th May, 2021. Summoned to explain the failure, the Registrar swore an affidavit confirming that the suit property, TITLE NO.180/II/MN CR.613, had been subdivided from 1992, the register closed, and fresh titles issued to third parties who were never parties to the suit, some of which titles were charged to banks. The court framed four issues: whether the affidavit was merited; whether it could review a judgment of a judge no longer at the station; what remedy existed for defects in the judgment; and costs. It found the affidavit merited, held that Order 45 Rule 2(2) of the Civil Procedure Rules permitted it to review the judgment of a transferred judge, and concluded that the non-existence of the suit property constituted both discovery of new and important matter and an error apparent on the face of the record under Section 80 of the Civil Procedure Act and Order 45. Relying on James Kanyiita Nderitu, it also held that third-party proprietors had been condemned unheard. The court therefore set aside the judgment of 19th May, 2021 and all consequential orders, directed the suit to commence de novo, enjoined the registered proprietors of the subdivisions as interested parties, fixed the matter for priority hearing on 2nd July 2024 with a pre-trial mention on 22nd May 2024, and made no orders as to costs.

Key legal issues

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01

Whether the Land Registrar's affidavit is merited

Holding

Yes - the affidavit explained that the decree could not be executed because the suit property no longer existed

Reasoning

The Land Registrar confirmed on affidavit and in oral testimony that parcel MN/II/180 (CR 613) was subdivided from 1992, the register closed, and titles transferred to third parties not before the court. Some of the new titles were charged to banks. The court accepted this as a truthful explanation of the impediment to execution and found the decree could not be implemented as drafted.

p. 5
02

Whether the court can review a judgment of a judge no longer sitting in the station

Holding

Yes, under Order 45 Rule 2(2) of the Civil Procedure Rules, 2010

Reasoning

The judgment and decree were made by Justice Yano, who had been administratively transferred to Meru. Order 45 Rule 2(2) expressly permits such an application to be heard by any judge attached to the court at the time of hearing. The court therefore held itself competent to consider review of the 19th May 2021 judgment.

p. 6
03

Whether the judgment of 19th May 2021 should be reviewed

Holding

Yes - the non-existence of the suit property was both discovery of new and important matter and an error apparent on the face of the record, and the third-party proprietors were condemned unheard

Reasoning

The subdivision and issuance of fresh titles was information never disclosed to the court before judgment, qualifying as discovery of new and important matter under Order 45 Rule 1. The judgment itself quoted a non-existent title, qualifying as an error apparent on the face of the record. Further, the registered proprietors of the subdivisions were never enjoined, violating natural justice, so the judgment was irregular and set aside ex debito justiciae, with the suit to start de novo.

p. 10
04

Costs of the Land Registrar's affidavit

Holding

No orders as to costs

Reasoning

Costs are discretionary and, under Section 27(1) of the Civil Procedure Act, follow the event. Given the unusual circumstances in which the affidavit arose and the court's suo motu review, the court found it fair that neither side be awarded costs.

p. 12

Legal principles established

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  • A court may hear an application for review where the judge who passed the decree is no longer attached to the court
  • A court may set aside an irregular judgment on its own motion, as of right, because the affected party was condemned unheard
  • Section 80 of the Civil Procedure Act confers the power of review while Order 45 sets out the rules governing its exercise

Court orders

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  1. 1.That this Honourable Court be and hereby sets aside the Judgment delivered on 19th May, 2021 and all consequential orders on account that the said Judgment quotes a title document for a parcel of land that does not exist
  2. 2.That the suit has to commence 'De Novo' in order to re-establish the actual facts and apply the law afresh and appropriately
  3. 3.That the suit be fixed for hearing on priority basis on 2nd July, 2024
  4. 4.That there shall be a mention on 22nd May, 2024 for purposes of conducting a thorough and intensive Pre-Trial conference under Order 11 of the Civil Procedure Rules, 2010
  5. 5.That the alleged legal proprietors of the suit properties as per the title deeds attached by the Land Registrar be enjoined in this suit as interested parties to the suit
  6. 6.That there shall be no orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActSections 37 and 38
  • Civil Procedure Rules, 2010Order 37 Rule 7(1) and (2); Order 45 Rules 1, 2 and 3; Order 45 Rule 5; Order 11
  • Land ActNo. 6 of 2012
  • Land Registration ActNo. 3 of 2012
  • Constitution of Kenya, 2010Articles 10(1), 10(2)(a) and 159(1)
  • Civil Procedure ActSection 80(1); Section 27(1)
  • Land Registration RegulationsSection 86 (Form LRM 86, Schedule 6)

Cases cited (14)

  • Republic – Versus - Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Pancras T. Swai – Versus - Kenya Breweries Limited
    [2014] eKLR
  • Sarder Mohamed – Versus - Charan Singh Nand Sing and Another
    (1959) EA 793
  • Ajit Kumar Rath – Versus - State of Orisa & Others
    9 Supreme Court Cases 596 at Page 608
  • Republic – Versus - Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR, Nairobi Judicial Review Division Misc. Application No. 317 of 2018
  • Sese (Suing as the Administrator of the Estate of the Late Shali Sese) – Versus - Karezi & 8 others
    (Environment and Land Constitutional Petition 32 of 2020) [2023] KEELC 17427 (KLR)
  • National Bank of Kenya Ltd - Versus Ndungu Njau
    (1997) eKLR
  • James Kanyiita Nderitu & Another
    [2016] eKLR
  • Mbogo & Another -vs- Shah
    (1968) EA 98
  • Patel vs- E.A. Cargo Handling services Ltd
    (1975) E.A. 75
  • Chemwolo & Another -vs- Kubende
    (1986) KLR 492
  • CMC Holdings -vs- Nzioka
    [2004] I KLR 173
  • Jasbir Rai Singh – Versus - Tarchalan Singh
    eKLR (2014)
  • Cecilia Karuru Ngayo – Versus - Barclays Bank of Kenya Limited
    eKLR (2014)
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act, Cap 22; Order 37 Rule 7(1) and (2) of the Civil Procedure Rules, 2010; Section 80 of the Civil Procedure Act, Cap 21 and Order 45 of the Civil Procedure Rules, 2010

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, "Kidunga & 8 others (Suing on Their Behalf and on Behalf of Squatters/ Residents of Vikwatani Estate Residing Upon the Suit Property/ Plot No. 180/II/MN Title No. CR.613 Numbering 123 People Whose Names Appears in the Schedule of List of Members of Hakikisho Development Group attached to the Originating Summons Herein) v Shafi & 3 others (Environment and Land Case Civil Suit 64 of 2015) [2024] KEELC 4513 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4513/eng@2024-03-20

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