Njogu & 2 others v Munene (Suing as administrator of the Estate of Githinji Munene Kathenge alias Munene Gathenge) & 3 others (Environment and Land Appeal 10 of 2022) [2026] KEELC 775 (KLR)

The court analysed Sections 94 and 96 of the Land Registration Act. Section 94 vests in the Land Registrar power to determine applications for subdivision of land held in common, with the court's role limited to review of the Registrar's decision under Section 94(5). Section 96 permits court intervention only upon a specific application for sale where subdivision is impractical. The respondents' suit, though framed as a prayer for subdivision, sought severance of co-ownership through allocation of exclusive titles, which falls squarely within Section 94. No prior application had been made to the Registrar, so the trial court exercised a power Parliament vested in the Registrar first.

Relying on Kenya Ports Authority v Modern Holdings [EA] Limited, the court held that jurisdiction may be raised at any time, in any manner, even for the first time on appeal. Although the appellants' preliminary objection on exhaustion was dismissed on 13th February 2020 and not appealed, that ruling could not confer jurisdiction, since jurisdiction flows from the Constitution and statutes and not from interlocutory determinations or party acquiescence. The appellate court is duty-bound to satisfy itself that proceedings before the court below were properly before it in law.

Under Section 27 of the Civil Procedure Act, costs follow the event unless the court, for good reason, orders otherwise. Citing re Estate of Monica Wanjiru Macharia (Deceased), the court noted that the award of costs lies in the discretion of the court, to be exercised judiciously. Finding no reason to deviate from the statutory edict, the court granted the appellants their costs both before this court and before the trial court.