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Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment (Busia Environment and Land Court; Notice of Motion dated 31st January 2024)· [2025] KEELC 318 (KLR)

Wanjala Ojiambo Mubweka & 2 Others v Francis Otieno Barasa & Another

Environment and Land Court
4 February 2025
2,553 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court corrected its own 2019 land judgment on review, cancelling one title outright while refusing to cancel a second parcel.

What this practically means

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Executive summary

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This is a ruling on the Plaintiffs' Notice of Motion dated 31st January 2024 seeking review, under Section 80 of the Civil Procedure Act and Order 45 Rules 1(1) and 51(3) of the Civil Procedure Rules, of the judgment of Kaniaru J delivered on 21st May 2019 (recorded in the ruling as 24th May 2019) which cancelled the title to parcel Bukhayo/Bugengi/9224 without specifying in whose name it should revert, and declined cancellation of parcel 9225. The Plaintiffs explained that when the decree of 25th July 2022 was presented to the Busia County Land Registrar, she advised that cancellation would revert the title to Leonard Ongweni Barasa, the original fraudulent registrant, rather than to Peter Ojiambo Mubweka, and directed them back to court. The 1st Defendant opposed, arguing the decree was not the proper one given a pending appeal, that a new cause of action was being raised, that the alleged new evidence was discoverable with due diligence, and that the application was filed with unreasonable delay. Boaz N. Olao J found that the Land Registrar's advice was new and important matter or evidence, that neither party could date the advice so any delay was not unreasonable, and that the original judgment's failure to direct re-registration was an error apparent on the face of the record, not the Plaintiffs' negligence. The court further held that the unsigned, unregistered Notice of Appeal did not stay execution. The application was allowed and the judgment reviewed and substituted, and costs were awarded to the Plaintiffs.

Key legal issues

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01

Whether the advice of the Land Registrar amounted to discovery of new and important matter or evidence

Holding

Yes - the advice could not have been within the Plaintiffs' knowledge at the time of judgment

Reasoning

The Registrar advised, upon presentation of the decree, that cancellation of parcel 9224 would revert it to the original registrant who had fraudulently acquired it. The court found this clearly new and important matter discovered only when the decree was presented to the Land Registry, satisfying the first limb of Order 45 Rule 1(1).

p. 4
02

Whether the application was brought without unreasonable delay

Holding

Yes - delay was not unreasonable

Reasoning

Neither party could state with certainty when the Land Registrar gave the advice. The court held that in such circumstances the benefit of doubt goes to the applicants, so the delay could not be found unreasonable.

p. 4
03

Whether the application raises a new cause of action requiring a fresh suit

Holding

No - it corrects an error apparent on the face of the record

Reasoning

The court held that the original judgment ought to have specified in whose name the cancelled title should be registered. Its omission was an error by the court itself, not negligence by the Plaintiffs, and is properly corrected by review rather than a fresh suit.

p. 5
04

Whether the pending appeal/stay bars the review and enforcement

Holding

No

Reasoning

The Notice of Appeal dated 3rd November 2023 was not lodged in the registry, not signed by the Deputy Registrar, and not served. No stay orders had been issued by this Court or the Court of Appeal, and particulars of any pending appeal were not disclosed.

p. 5

Legal principles established

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  • A blanket cancellation of title without indicating in whose name it should be registered is an error apparent on the face of the record warranting review
  • A notice of appeal which is not endorsed by the Registrar impacts on the timeliness of all other steps on appeal, and a notice of appeal by itself is not enough to stay execution

Court orders

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  1. 1.The judgment delivered on 21st May 2019 and the consequential Decrees and Orders are reviewed and substituted with an order that title to parcel No Bukhayo/Bugengi/9224 be cancelled and the same revert to the name of Peter Ojiambo Mubweka
  2. 2.Title to the land parcel No Bukhayo/Bugengi/9225 shall not be cancelled
  3. 3.Costs to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1(1)
  • Civil Procedure RulesOrder 51 Rule 3

Cases cited (1)

  • Salama Beach Ltd & 3 Others -v- Kenyariri & Associates Advocates
    2016 eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) and Order 51 Rule 3 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, "Wanjala Ojiambo Mubweka & 2 Others v Francis Otieno Barasa & Another", Case Analysis (2025). Not stated in judgment (Busia Environment and Land Court; Notice of Motion dated 31st January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/318/eng@2025-02-04

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