[2022] KEELC 524 (KLR)
The court found that the office of the Commissioner of Lands no longer exists under the current constitutional framework, and the appropriate office for the enforcement of land-related decrees is now the Chief Land Registrar. The court held that it has the discretion to review its own judgment or decree to correct...
Source-derived case information.
- Citation
- [2022] KEELC 524 (KLR)
- Parties
- Plaintiff: Milka Nyako Kanyari; Defendant: Esther Nyambura Richu; Defendant: Peter Nyoro Kahiga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2010
- Procedural Posture
- Notice of Motion / Ruling on Application for Review of Judgment/decree
- Outcome
- application allowed
- Judges
- LC Komingoi
- Legal Topics
- Review of Judgment, Clerical Errors, Land Registrar Substitution, Enforceability of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Milka Nyako Kanyari
Plaintiff
Esther Nyambura Richu
Defendant
Peter Nyoro Kahiga
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Review of Judgment/decree
Legal Issues
- 1 Whether the court should review its judgment/decree to substitute the Commissioner of Lands with the Chief Land Registrar.
- 2 Whether such substitution is necessary for enforceability of the decree.
- 3 Whether the substitution would prejudice the defendants.
Ratio Decidendi
The court found that the office of the Commissioner of Lands no longer exists under the current constitutional framework, and the appropriate office for the enforcement of land-related decrees is now the Chief Land Registrar. The court held that it has the discretion to review its own judgment or decree to correct such an error, especially where the correction is necessary to make the decree enforceable and does not prejudice the defendants. The application was therefore merited and allowed, with the decree reviewed to substitute the Commissioner of Lands with the Chief Land Registrar.
Court Disposition
application allowed
Orders
- The judgment/decree is reviewed by substituting the Commissioner of Lands with the Chief Land Registrar.
- The costs of the application are to be borne by the Plaintiff/Applicant.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 12 OF 2010
MILKA NYAKO KANYARI...............................................................................PLAINTIFF
VERSUS
ESTHER NYAMBURA RICHU..............................................................1ST DEFENDANT
PETER NYORO KAHIGA......................................................................2ND DEFENDANT
RULING
1. This is the Notice of Motion dated 9th June 2021 under order 45 rules 1(b) section 3A Civil Procedure Act Article 159(d) of the Constitution of Kenya 2010.
2. It seeks orders:-
(a) That the Court be pleased to review its Judgment/Decree in order (b) thereof by substituting the Commissioner of Lands with the Land Registrar.
(b) Any other order the Court may deem fit to grant to enable execution of the Decree herein.
(c) Costs be provided.
3. The grounds are on the face of the application and are set out in paragraphs (a) to (e).
4. The application is supported by the affidavit of Milka Nyakio Kanyari, the Plaintiff Decree Holder, sworn on the 9th June 2021.
5. The application is opposed. There are grounds of opposition filed by the 2nd Defendant/Judgment Debtor dated 27th October 2021.
6. This matter first went to Honourable Wamboto J who on 17th November 2021 directed that the notice of motion be canvassed by written submissions.
7. The Plaintiff’s/Applicant’s submissions are dated 23rd November 2021. She submits that the non-registration and thus non enforceability of the Decree of this court is because the order is directed to the Commissioner of Lands and the correct officer is Chief Land Registrar/Land Registrar.
8. It is further her submissions that the amendments to the Decree to read Chief Land Registrar will not prejudice the Defendants/Respondents on any way. She prays that the application be allowed.
9. I have considered the notice of motion and the affidavit in support. I have also considered the written submissions filed on behalf of the Plaintiff. The issue for determination is whether the application is merited.
10. The Plaintiff’s/Applicant’s prayer that the Decree ought to be reviewed to substitute the Commissioner of Lands with the Chief Land Registrar.
11. Section 99 of the Civil Procedure Act provides that:-
“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”
Order 45 rule 1(b) of the Civil Procedure Rules provides that:-
“(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
12. The Judgement of this Court dated 4th June 2020 has neither been set aside nor reviewed. It is not in dispute that in the new constitution dispensation the office of Commissioner of Lands does not exist, what exists is the office of the Chief Land Registrar.
13. I find that this court has discretion to review its judgment so that it can be enforceable.
14. I find that no prejudice will be occasioned to the Defendants/Judgment Debtors if these orders are granted.
15. In conclusion, I find merit in this application and the same is allowed in the following terms:-
(a) That the Judgement/Decree is hereby reviewed to substituting the Commissioner of Lands with the chief Land Registrar.
(b) That the costs of this application be borne by the Plaintiff/Applicant.
It is so ordered.
DATED, SIGNED AND DELIVERED NAIROBITHIS 17TH DAY OF MARCH 2022.
...........................
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Gatumuta for the Plaintiffs
No appearance for the Defendants
Steve - Court Assistant