Marete v Kanja & 3 others (Miscellaneous Case E005 of 2023) [2024] KEMC 127 (KLR)
The bottom line
#A Meru landowner won eviction orders after confirming cancelled titles give buyers no legal protection in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the court was duly gazetted as an Environment and Land Court
The objection failed; the court was gazetted as an Environment and Land Court by Gazette Notice No. 1745 of 14th March, 2016 published on 18th March, 2016.
The respondents contended the court had not been gazetted, relying on Notice No. 9777 of 8th August, 2022. The court pointed instead to Gazette Notice No. 1745 of 14th March, 2016 by Chief Justice Willy Mutunga, gazetting the court as an Environment and Land Court from 18th March, 2016, and dismissed the objection on that point.
Whether the Applicant was required to return to the High Court to enforce the decree under Order 22 rule 6
No; the decree was self-executing and had been fully implemented by issuance of the title deed, so the High Court became functus officio and the Applicant was entitled to approach the Environment and Land Court.
Section 30 of the Civil Procedure Act and Order 22 rule 6 provide that a decree is executed by the court which passed it or a court to which it is sent. However, where the decree directs a third party (the Lands Registrar) to perform an act, it is self-executing. Once the Registrar issued the new title deed on 24th February 2023, nothing remained for the High Court to execute, so fresh proceedings in the Land Court were proper, following Florence Cherugut v Cheptum Murei Annah.
Whether eviction orders should issue against the Respondents
Yes; the Applicant, as registered owner who had issued eviction notices that expired, was entitled to the reliefs sought, as the Respondents' titles had been cancelled and no longer existed.
The High Court decree cancelled Abothuguchi/Gitie/1143 and 1144 and reverted the land to the Applicant as Abothuguchi/Gitie/716. The Respondents held no existing title to protect. Guided by Margaret Karwira Mwongera v Francis Kofo and James Mathura Makewa v Nzari Nguli, where eviction issued for registered proprietors holding title, the court allowed eviction.
Legal principles established
#- Only the court which passed a decree is empowered to execute it unless it is transferred to another court of competent jurisdiction.
- Where a decree is self-executing and has been fully implemented, the court that passed it becomes functus officio and the decree-holder may approach the Environment and Land Court for protection of the property.
- A court of law should not act in vain to protect non-existent title deeds; cancelled titles confer no protection.
Court orders
#- 1.Orders of eviction of the Respondents from all that parcel of land known as Abothuguchi/Gitie/716 and for vacant possession of the property to be delivered to the applicant forthwith
- 2.An Order directing the Officer Commanding Station Kariene Police Station to effect the eviction and delivery of vacant possession
- 3.The costs of the Application to be borne by the respondents
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Gazette Notice No. 1745 of 14th March, 2016; Land Act sections 152A, 152B, 152E and 152F
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marete v Kanja & 3 others (Miscellaneous Case E005 of 2023) [2024] KEMC 127 (KLR)", Case Analysis (2024). Motion on Notice dated 18th September, 2023 (Githongo Law Courts). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/127/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.