Kamau & another v Karuga & 2 others (Enviromental and Land Originating Summons E022 of 2022) [2024] KEELC 7218 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Res judicata against the 1st Defendant
The suit as against the 1st Defendant is res judicata because the Plaintiffs' rights against him were determined in Thika ELC 267 of 2018
The Plaintiffs had sued the 1st Defendant in Thika ELC 267 of 2018 and on 29/4/2021 obtained a judgment declaring their adverse possession claim established and the registered owner's title extinguished. The matter between the same parties had therefore been directly and substantially in issue and finally decided by a competent court, attracting Section 7 of the Civil Procedure Act.
Validity of the post-judgment transfer to the 2nd Defendant
The transfer of the suit property by the 1st Defendant to the 2nd Defendant after judgment was in contempt of court orders and is null and void; the 2nd Defendant's title is cancelled under Section 80 of the Land Registration Act
The 1st Defendant admitted selling the land 12 months after judgment, and the court had already held him in contempt. A judgment in rem binds the whole world; the transfer contravened subsisting orders and, following Macfoy v United Africa Co Ltd, a void act is incurably bad and a nullity without need of setting aside. Section 80 of the Land Registration Act empowers the court to cancel the derivative title.
Whether the Plaintiffs are entitled to be registered as proprietors
Yes; the Plaintiffs were registered as absolute proprietors without pre-conditions, their adverse possession having been established in the earlier suit
Since the earlier judgment extinguished the 1st Defendant's title and the derivative title to the 2nd Defendant was a nullity, the register had to reflect the Plaintiffs' accrued rights. The court exercised its powers under Section 80 of the Land Registration Act to direct registration of the Plaintiffs as absolute proprietors without pre-conditions.
Legal principles established
#- A judgment in rem upholds a right as against the whole world and remains valid and enforceable for 12 years
- A transfer made in violation of subsisting court orders is a nullity requiring no formal setting aside
Court orders
#- 1.A declaration that the transfer of L.R. No. KABETE/GATHIGA/T.180 by the 1st Defendant to the 2nd Defendant, the registration of the 1st Defendant as proprietor and the Certificate of Title issued to the 2nd Defendant are null and void for violating Court orders in Thika ELC Suit No. 267 of 2018
- 2.Cancellation of the registration of the 2nd Defendant as proprietor of the suit property and of the Certificate of Title issued to him
- 3.The Kiambu Registrar of Lands ordered to register the Plaintiffs as absolute proprietors of the suit land without any pre-conditions
- 4.Costs in favour of the Plaintiffs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution / Environment and Land Court Act (ELC jurisdiction); Land Registration Act and Limitation of Actions Act invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau & another v Karuga & 2 others (Enviromental and Land Originating Summons E022 of 2022) [2024] KEELC 7218 (KLR)", Case Analysis (2024). ELC Suit (Originating Summons dated 30/6/2022), Thika. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7218/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.