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ELCOtherNot stated in judgment (Kajiado ELC suit re: L.R. No. Loitoktok/Ngamia/53)· [2025] KEELC 4350 (KLR)

Mashua v Shah & another (Environment & Land Case E028 of 2021) [2025] KEELC 4350 (KLR)

Environment and Land Court
5 June 2025
MMM.D. Mwangi
954 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This interlocutory decision of the Environment and Land Court at Kajiado, delivered by M.D. Mwangi J on 5th June 2025, addresses the court's suo motu re-opening of a land dispute before delivery of judgment. The plaintiff claims to be the registered owner of L.R. No. Loitoktok/Ngamia/53, where he has lived for over 55 years, and sued for a declaration of proprietary interest, cancellation of alleged illegal/irregular transfers, and a permanent injunction after discovering in 2020 that the 1st defendant had lodged a 'transfer by chargee' form pending execution by the 2nd defendant. The plaintiff acknowledged prior proceedings (Civil Case No. 497 of 1994) over the same subject matter. The court noted that the official search of 7th December 2020 disclosed pending entries - a transfer by charge dated 16th January 2019 and a caution - yet the plaintiff offered no explanation of the 'pending transfer by chargee' entry and produced no current certified title or search. Invoking Order 21 rule 6 of the Civil Procedure Rules, which requires a certified copy of title before judgment altering land title, section 22(b) of the Civil Procedure Act and section 173 of the Evidence Act, and applying its earlier decision in Jeremy Mark Block v Kenya Forest Service, the court vacated its earlier order on delivery of judgment, re-opened the case, and directed that witness summons issue for the Land Registrar, Kajiado Central to testify on the status of the title and produce the parcel file. No costs order was made.

Key legal issues

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01

Suo motu re-opening of a case before judgment to obtain further evidence

Holding

The court has power under section 22(b) of the Civil Procedure Act and section 173 of the Evidence Act, acting on its own motion, to summon a witness and re-open the case where necessary for a just and conclusive determination.

Reasoning

The plaintiff did not produce a current certified title or search showing the present status of the suit property despite a pending 'transfer by chargee' entry. Order 21 rule 6 requires a certified copy of title before judgment altering land title. The Land Registrar, as custodian of the register and parcel file under section 9 of the Land Registration Act, is the proper person to explain. This was deemed an exceptional case justifying exercise of the discretion.

p. 2
02

Custody and maintenance of the land register

Holding

The Land Registrar is mandated to maintain the register and is custodian of the parcel file containing supporting instruments.

Reasoning

Section 9 of the Land Registration Act obliges the Registrar to maintain the register and custody of the parcel file; hence the Registrar is the right person to explain the basis of the pending 'transfer by chargee' entry and the current status of the title.

p. 2

Legal principles established

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  • Order 21 rule 6 of the Civil Procedure Rules requires production of a certified copy of the title before judgment in a matter where the grant sought would alter the title to land
  • The court may, on its own motion and at any stage of proceedings, summon any person whose attendance is required to produce documents or give evidence

Court orders

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  1. 1.The court's earlier order on delivery of judgment is vacated
  2. 2.The case is re-opened to enable the Land Registrar Kajiado Central appear as a witness on the status of the title to L.R. No. Loitoktok/Ngamia/53 and to produce the parcel file
  3. 3.The court to issue appropriate witness summons to the Land Registrar, Kajiado Central to appear and testify on an appropriate date and to produce the parcel file

Authorities

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Legislation

  • Civil Procedure ActSection 22(b)
  • Civil Procedure RulesOrder 21 rule 6
  • Evidence ActSection 173
  • Land Registration ActSection 9

Cases cited (1)

  • Jeremy Mark Block vs The Kenya Forest Service & Others
    ELC Pet. 1396 of 2014
Jurisdiction invoked
Section 22(b) of the Civil Procedure Act; Order 21 rule 6 of the Civil Procedure Rules; Section 173 of the Evidence 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, "Mashua v Shah & another (Environment & Land Case E028 of 2021) [2025] KEELC 4350 (KLR)", Case Analysis (2025). Not stated in judgment (Kajiado ELC suit re: L.R. No. Loitoktok/Ngamia/53). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4350/eng@2025-06-05

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