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MagistrateAllowedMotion on Notice dated 18th September, 2023 (Githongo Law Courts)· [2024] KEMC 127 (KLR)

Marete v Kanja & 3 others (Miscellaneous Case E005 of 2023) [2024] KEMC 127 (KLR)

Magistrates' Environment and Land Court
8 March 2024
2,962 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Meru landowner won eviction orders after confirming cancelled titles give buyers no legal protection in Kenya.

What this practically means

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Executive summary

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The Applicant, registered owner of Abothuguchi/Gitie/716, moved the Magistrates' Environment and Land Court at Githongo by Motion on Notice dated 18th September, 2023 seeking eviction of the Respondents from that parcel, an order directing the OCS Kariene Police Station to effect the orders, and costs. Her title was restored after the High Court in Meru Succession Cause No. 78 of 2001 (E. Muriithi J.) cancelled the sub-division into Abothuguchi/Gitie/1143 and 1144, which had been fraudulently obtained by her elder daughter Beatrice Mwendwa and transferred to the Respondents. The Respondents opposed, contending the court lacked jurisdiction because it had not been gazetted as an Environment and Land Court and because Order 22 rule 6 of the Civil Procedure Rules required the Applicant to return to the High Court to enforce the decree. The court rejected both objections: it was gazetted as an Environment and Land Court by Gazette Notice No. 1745 of 14th March, 2016; and since the High Court decree was self-executing and had been fully implemented by issuance of a new title deed on 24th February 2023, the High Court became functus officio, leaving the Applicant free to file fresh proceedings in the Land Court. On the merits, the Respondents' titles had been cancelled and were non-existent in law. Guided by superior court authorities, the court allowed the application, ordering eviction, delivery of vacant possession, police assistance, and costs against the Respondents.

Key legal issues

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01

Whether the court was duly gazetted as an Environment and Land Court

Holding

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.

Reasoning

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.

p. 4
02

Whether the Applicant was required to return to the High Court to enforce the decree under Order 22 rule 6

Holding

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.

Reasoning

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.

p. 4
03

Whether eviction orders should issue against the Respondents

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.An Order directing the Officer Commanding Station Kariene Police Station to effect the eviction and delivery of vacant possession
  3. 3.The costs of the Application to be borne by the respondents

Authorities

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Legislation

  • Civil Procedure Actsection 30
  • Civil Procedure RulesOrder 22 rules 1 to 6
  • Land Actsections 152A, 152B, 152E and 152F
  • Kenya Gazette Notice No. 1745 of 14th March, 2016 - CXVIII No. 28

Cases cited (7)

  • Silvanus Kizito versus Edith Nkirote Mwiti
    [2021] eKLR
  • Leisure Lodge Ltd v Japhet Asige and another
    (2018) eKLR
  • Mombasa Bricks & Tiles Ltd & 5 Others v Arvind Shah & 7 Others
    [2018] eKLR
  • Telkom Kenya Ltd v John Ochanda
  • Florence Cherugut v Cheptum Murei Annah
    [2022] eKLR
  • Margaret Karwira Mwongera v Francis Kofo
    [2019] eKLR
  • James Mathura Makewa v Nzari Nguli
    [2021] eKLR
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

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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, "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.