[2024] KEELC 7189 (KLR)
The court found that the plaintiff's application for review was without merit because the matters raised—specifically, the extension of ownership to L.R. No. 1173 and the removal of a caution—were not part of the original suit, which only concerned L.R. No. 2119. Introducing new subject matter or causes of action...
Source-derived case information.
- Citation
- [2024] KEELC 7189 (KLR)
- Parties
- Plaintiff: Samuel Sopon Parashuru; Defendant: Taporu Maseine; Defendant: Joshua Nkoirishishe; Defendant: Salaash Nkoirishishe; Defendant: Koid ole Teenu; Defendant: Setei ole Shompa; Defendant: Noah Nkunkat; Defendant: Kajiado District Land Office; Defendant: Registrar of Titles; Defendant: National Land Commission; Defendant: County Government of Kajiado
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 750 of 2017
- Procedural Posture
- Review Application / Ruling on Notice of Motion for Review of Judgment
- Outcome
- Application dismissed with costs to the defendants.
- Judges
- MN Gicheru
- Legal Topics
- Review of Judgment, Land Subdivision, Removal of Caution, Costs Award, Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Sopon Parashuru
Plaintiff
Taporu Maseine
Defendant
Joshua Nkoirishishe
Defendant
Salaash Nkoirishishe
Defendant
Koid ole Teenu
Defendant
Setei ole Shompa
Defendant
Noah Nkunkat
Defendant
Kajiado District Land Office
Defendant
Registrar of Titles
Defendant
National Land Commission
Defendant
County Government of Kajiado
Defendant
Procedural Posture
Review Application / Ruling on Notice of Motion for Review of Judgment
Legal Issues
- 1 Whether the court should review its judgment dated 31/1/2023 on account of error or sufficient reason.
- 2 Whether the plaintiff's ownership of L.R. No. 1173 extends to its subdivisions L.R. Kajiado/Lorngusua 2119 and 2118.
- 3 Whether the caution on L.R. No. 2119 should be removed through review.
Ratio Decidendi
The court found that the plaintiff's application for review was without merit because the matters raised—specifically, the extension of ownership to L.R. No. 1173 and the removal of a caution—were not part of the original suit, which only concerned L.R. No. 2119. Introducing new subject matter or causes of action through a review application is impermissible. Furthermore, the plaintiff was not the successful party in the original judgment and is therefore not entitled to costs. The court reiterated that the underlying dispute was a boundary issue that should have been resolved by the Land Registrar before litigation. As such, the application for review was dismissed with costs to the...
Court Disposition
Application dismissed with costs to the defendants.
Orders
- The notice of motion dated 1/11/2023 is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
42 paragraphs
Parashuru v Maseine & 9 others (Environment & Land Case 750 of 2017) [2024] KEELC 7189 (KLR) (29 October 2024) (Ruling)
Neutral citation: [2024] KEELC 7189 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 750 of 2017
MN Gicheru, J
October 29, 2024
Between
Samuel Sopon Parashuru
Plaintiff
and
Taporu Maseine
1st Defendant
Joshua Nkoirishishe
2nd Defendant
Salaash Nkoirishishe
3rd Defendant
Koid ole Teenu
4th Defendant
Setei ole Shompa
5th Defendant
Noah Nkunkat
6th Defendant
Kajiado District Land Office
7th Defendant
Registrar of Titles
8th Defendant
National Land Commission
9th Defendant
County Government of Kajiado
10th Defendant
Ruling
1. This ruling is on the notice of motion dated 1/11/2023. The motion which is brought under Sections 1A, 1B and 3A of the Civil procedure Act, orders 45 rules 1(a), 3(2) and 5 and 51 rule 1 of the Civil Procedure Rules seeks the following residual orders.SUBPARA 1. Review of the judgment dated 31/1/2023 on account of mistake and/or error on the face of the record and/or for sufficient reason and on order that the plaintiff’s ownership of L.R. No. 1173 extends to its subdivisions, that is L.R. Kajiado/Lorngusua 2119 and 2118 and thereby enter judgment for the plaintiff in the above terms.SUBPARA 2An order that the caution on L.R. No. 2119 be removed and/or vacated to give effect to this judgment.SUBPARA 3. That costs be granted to the plaintiff.
2. The motion is based on nine (9) grounds and is supported by the plaintiff’s affidavit dated 1/11/2023 which has four (4) annexures.
3. In summary, the applicant’s case is as follows. He is the owner of the L.R. No. Kajiado/Lorngusua/1173 measuring 75. 96 hectares. Two, on 16/11/2011, he applied for the suit land to be subdivided into two portions. Three, in the judgment dated 31/1/2023 at paragraph 13, the court found that the allocation of L.R. 1173 to the plaintiff was lawful. However, there was uncertainty as to whether L.R. No. 2119 was a subdivision of L.R.No. 1173 owing to lack of an official map and certificate of official search. Four, the applicant had provided the material said to be missing from the record. Five, there is an error and/or mistake on the face of the record sufficient to make the court review its judgment of 31/1/2023. Six, the wrongful caution on L.R. No. 2119 ought to be removed and/or vacated forthwith. Seven, since 5/8/2016, the Land Registrar Kajiado has not removed the caution in respect to L.R. No. 2119 despite the plaintiff writing to him. Eight, the cautioner went to slumber after cautioning the suit land.For the above and other reasons, the applicant prays for the orders.
4. The plaintiff has sworn a supplementary affidavit dated 30/5/2024 referring to a replying affidavit by Noah R. Nkunkat. I cannot see the said replying affidavit on record. I have also seen the plaintiff’s written submissions dated 28/5/2024 but none by the defendants.
5. I will proceed to determine the motion even in the absence of the above material from the respondents. I have carefully considered the motion in its entirety and I make the following findings. Firstly, in the plaint dated 8/2/2016, all the prayers related to L.R. No. 2119. There is no mention of L.R. No. 1173. Review must relate to the subject matter but not a new parcel of land which should be the subject to a separate suit. Secondly, in the plaint dated, there was no mention of a caution. It cannot now be brought through review. That too must be a new cause of action. It would be unfair to the defendants for this court to deal with a matter that was not part of the dispute in the suit.
6. Thirdly, the plaintiff was not successful party. Since he was not the successful party, he cannot be awarded the costs because under the proviso to Section 27 of the Civil Procedure Act, costs follow the event. It is only for good reason that the court may order otherwise. In this case, the court has not been persuaded as to why the costs should be awarded to the plaintiff.
7. Finally, the judgment dated 31/1/2023 was clear as to why the plaintiff did not succeed in the case. The reason is that the dispute was essentially one relating to boundaries and it had to be resolved by the Land Registrar before it could be filed in court.
8. In summary, I find no merit in the motion dated 1/11/2023 and I dismiss it with costs.
It is so ordered.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 29THDAY OF OCTOBER 2024. M.N. GICHERUJUDGE