[2021] KEELC 2680 (KLR)
The court found that although the error in the original application was on the part of the applicant and not in the court's ruling, it is just to allow the review to enable the applicant to enjoy the fruits of her judgment. The court exercised its discretion under the Civil Procedure Act and Rules to substitute the...
Source-derived case information.
- Citation
- [2021] KEELC 2680 (KLR)
- Parties
- Appellant: Jadiel Karogo M’Ithiano; Respondent: Julia Mugito
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 227 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Ruling
- Outcome
- application for review allowed
- Legal Topics
- Review of Court Orders, Land Subdivision, Role of Land Registrar, Role of District Surveyor
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jadiel Karogo M’Ithiano
Appellant
Julia Mugito
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Ruling
Legal Issues
- 1 Whether the court should review its ruling to substitute the Meru Land Registrar with the Meru District Surveyor for purposes of effecting subdivision of the suit land.
- 2 Whether the error in the original application justifies the review sought.
Ratio Decidendi
The court found that although the error in the original application was on the part of the applicant and not in the court's ruling, it is just to allow the review to enable the applicant to enjoy the fruits of her judgment. The court exercised its discretion under the Civil Procedure Act and Rules to substitute the Meru Land Registrar with the Meru District Surveyor for the purpose of effecting the subdivision of the suit land, as the Land Registrar does not have the mandate to effect subdivisions, which is the responsibility of the District Surveyor. The application for review was therefore allowed.
Court Disposition
application for review allowed
Orders
- The order in paragraph 13(d) of the ruling dated 3rd December 2019 is reviewed by substituting 'Meru Land Registrar' with 'Meru District Surveyor'.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC APPEAL NO. 227 OF 2013
JADIEL KAROGO M’ITHIANO ...... APPELLANT/RESPONDENT
VERSUS
JULIA MUGITO .................................RESPONDENT/APPLICANT
RULING
1. Before me is a notice of motion dated 2nd March, 2020 brought pursuant to Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules and Section 1A, 1B & 3A of the Civil Procedure Act. The applicant, Julia Mugito is seeking an order of review of the court’s ruling dated 3rd December 2019 in particular paragraph 13 (d) by substituting Meru Land Registrar with Meru District surveyor.
2. The applicant avers that the the Land Registrar cannot effect subdivision on any land as that is the work of the district surveyor. The application is unopposed.
3. I have carefully perused the court file. In paragraph 4 of the applicant’s application dated 23. 5.2019 in prayer d), she had sought orders; “that the Meru Land Registrar be directed to effect subdivision of the land Title No. NYAKI/MULATHANKARI/54 and NYAKI/THUURA/1658”.The error was certainly on the part of the applicant and not in the ruling dated 3. 12. 2019.
4. I do however opine that a party must be allowed to enjoy the fruits of his judgment. The application is therefore allowed with no orders as to costs.
DATED, SIGNED AND DELIVERED AT MERU THIS 7TH DAY OF JULY, 2021
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this Ruling was given to the advocates for the parties through a virtual session via Microsoft teams on 5. 5.2021. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE