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ELCDismissedNotice of motion dated 17th October 2023 (arising from judgment delivered 4th August 2022)· [2024] KEELC 5610 (KLR)

Kimemia v Juma & 6 others; Nyandaro & another (Contemnor) (Environment & Land Case 351 of 2008) [2024] KEELC 5610 (KLR)

Environment and Land Court
25 July 2024
AOA. Omollo
2,782 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner failed to jail the Chief Land Registrar for contempt because her court decree never ordered the provisional title she wanted.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court by notice of motion dated 17th October 2023, under section 5 of the Judicature Act and section 3A of the Civil Procedure Act, seeking committal to civil jail of David N. Nyandoro, Chief Land Registrar, and J.W. Kamuyu, Registrar of Titles, for six months for contempt of a judgment delivered on 4th August 2022 by Justice S. Okongo, which declared the Applicant owner of LR 13873 and cancelled fraudulent titles and subdivisions. The Applicant also sought an order compelling the Registrar to issue a duplicate certificate of lease under section 33(3) of the Land Registration Act. The 3rd Defendant opposed in a replying affidavit, asserting that the decree had been registered against the title on 4th July 2023, that the judgment never directed issuance of a provisional title, and that replacement of a lost title requires the statutory procedure under section 33, including a statutory declaration and sixty days' gazette notice. The 7th Defendant filed grounds of opposition, noting prayer 3 was never awarded and that the application would render Nairobi Civil Appeal E301 of 2023 nugatory. The court reproduced the reliefs granted in the 2022 judgment, found they contained no order for issuance of a provisional title, held that a decree cannot curtail section 33, noted the leave order erroneously appeared to grant prayer 3 of the chamber summons (an error on the face of the record), and found no gazette notices proving further dealing with the subdivisions, which remain cancelled by the decree. No disobedience was proved, and the motion was dismissed with costs to the 3rd Defendant.

Key legal issues

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01

Whether contempt was proved against the Chief Land Registrar

Holding

No contempt was proved; the Registrar registered the decree against the title on 4th July 2023 and no disobedience was established to the required standard

Reasoning

The court found the decree had been registered on the suit title at entry number 5. The allegations of gazetting the subdivisions were unsupported by any gazette notice annexed; only a newspaper cutting by auctioneers and a valuation report were produced, with no nexus to the 3rd Defendant. The Registrar had also issued a search showing the Applicant as proprietor.

p. 6
02

Whether the decree obliged the Registrar to issue a provisional/duplicate title

Holding

No; the judgment contained no such order and section 33 of the Land Registration Act must be complied with by the Applicant

Reasoning

The court reproduced the reliefs granted on 4th August 2022 and found none directed issuance of a provisional title. The grant of leave to institute contempt included, in error, prayer 3 of the chamber summons seeking a provisional title — an error apparent on the face of the record. Administrative statutory procedures cannot be curtailed by a declaratory decree.

p. 5

Legal principles established

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  • Proof of contempt must exceed the balance of probability standard, and the burden lies on the Applicant to identify the specific paragraph of the decree disobeyed
  • A declaration of ownership in a decree does not override the statutory procedure for replacement of a lost or destroyed title under section 33 of the Land Registration Act
  • Titles declared cancelled by a court decree remain cancelled until the decree is set aside or varied; a party cannot be held in contempt for their continued existence on the register

Court orders

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  1. 1.The application dated 17.10.2023 is dismissed for want of merit with costs to the 3rd Defendant

Authorities

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Legislation

  • Judicature Actsection 5
  • Civil Procedure Actsection 3A
  • Land Registration Actsections 33(1), 33(3), 34

Cases cited (9)

  • Samuel Mweru v National Land Commission and others
    (2020) eKLR
  • Abdi Satarhaji & Another v Omar Ahmed & Another
    [2018] eKLR
  • Teachers Service Commission v Kenya National Union of Teachers & 2 Others
    [2013] eKLR
  • Hadkinson v. Hadkinson
    (1952) 2 All ER 567
  • Econet Wireless Kenya Limited v Minister for Information and Communication of Kenya Authority
    [2005] eKLR
  • T.N Gadavarman Thiru Mulpad v Ashok Khot and anor
    [2005] 5 SCC
  • Gatharia K. Mutikika v Baharini Farm Ltd
    [1985] KLR 227
  • Oilfield Movers Ltd v Zahara Oil & Gas Limited
    [2020] eKLR
  • Mahinderjit Singh Bitta v Union of India & Others
    IA NO 100 OF 2010
Jurisdiction invoked
Section 5 of the Judicature Act and section 3A of the Civil Procedure Act

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, "Kimemia v Juma & 6 others; Nyandaro & another (Contemnor) (Environment & Land Case 351 of 2008) [2024] KEELC 5610 (KLR)", Case Analysis (2024). Notice of motion dated 17th October 2023 (arising from judgment delivered 4th August 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5610/eng@2024-07-25

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