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Court of AppealPartially AllowedCivil Appeal (Nyeri), judgment delivered May 23, 1985

Wangechi Kimita v Wakibiru Mutahi [1985] KECA 73 (KLR)

Court of Appeal of Kenya
23 May 1985
JNJ.O NyarangiAHA.R.W HancoxAKA.A Kneller
2,350 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a land deal built on a misstated acreage can be reopened, and courts must never divide land without stating its exact size and location.

What this practically means

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Executive summary

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This Court of Appeal judgment, delivered at Nyeri by Nyarangi JA on May 23, 1985 and agreed to by Hancox JA and Kneller JA, allowed an appeal against a High Court ruling (JS Patel, AG J) dismissing the appellants' application for review of a consent order made by V V Patel, J on June 21, 1983. Under that consent order the respondent, registered proprietor of Aguthi/Gathaithi/228 after consolidation of family land owned by Wakibiru Mutahi, was to transfer 0.75 acres to each appellant, widows of his deceased brothers. The appellants applied for review on discovering, through a survey on February 3, 1984 and an extract of title dated February 6, 1984, that the land comprised 4.5 acres, not the 3.1 acres allegedly stated by the respondent. The court held, on a balance of probabilities, that the respondent misrepresented the acreage and failed to deny the sworn allegation, and that the discovery of the true acreage at the survey constituted sufficient reason for review. Critically, the court held that the residual ground of 'any other sufficient reason' in Order XLIV rule 1 need not be construed ejusdem generis with the preceding grounds, since section 80 of the Civil Procedure Act confers an unfettered right to apply for review. The court also laid down that no court should allocate or apportion land without specifically stating its acreage and location. Invoking section 3(2) of the Appellate Jurisdiction Act, the court set aside the order dismissing the review, required strict proof of the alleged discovery of new matter, and ordered that the respondent take one half of the 4.5 acres with the appellants sharing the remainder equally, with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent deliberately and falsely misrepresented the acreage of the land when the consent order was made on June 21, 1983
  2. 2.Whether the appellants' application for review fell within Order XLIV rule 1 of the Civil Procedure Rules, in particular 'for any other sufficient reason'
  3. 3.Whether the consent order could be set aside on the ground that a party was ignorant of material facts

Key legal issues

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01

Scope of 'any other sufficient reason' for review under Order XLIV rule 1

Holding

The words need not be construed ejusdem generis with the preceding grounds; section 80 of the Civil Procedure Act confers an unfettered right to apply for review.

Reasoning

The court declined to confine the residual ground of review to reasons analogous to discovery of new and important matter. It reasoned that section 80 of the Civil Procedure Act confers an unfettered right to apply for review, so the residual head in Order XLIV rule 1 should not be read as analogous to the specified grounds. Hancox JA agreed that the two preceding heads do not form a genus.

p. 3
02

Whether the consent order should be set aside for misrepresentation of the acreage

Holding

On the balance of probabilities the respondent misrepresented the acreage as 3.1 acres; the appellants were entitled to a review of the consent order.

Reasoning

The pleadings and proceedings were silent on acreage; the survey and extract of title revealed 4.5 acres. The respondent did not specifically deny the sworn allegation that he gave the acreage as 3.1. The appellants, widows relying on the respondent, could reasonably have accepted his statement and cross-checked at survey; the discovery of the true acreage was sufficient reason for review.

p. 2
03

Duty of courts when allocating land

Holding

A court should never allocate or apportion land whose acreage and location are not specifically stated.

Reasoning

The court criticised the failure to ascertain the size of the land before allocating 0.75 acres to each appellant, observing that this omission caused considerable inconvenience and that a description of land without acreage lacks an essential and crucial particular. This was stated as a rule of general application.

p. 2
04

Nature of the parties' entitlement to the land

Holding

The land is family land in which each male child is entitled to a beneficial or legal share under Kikuyu customary law; the appellants' claim rests on trust, not generosity.

Reasoning

It was common ground that the land was registered in the respondent's name after consolidation of portions owned by Wakibiru Mutahi, father of the respondent and his deceased brothers, whose widows the appellants are. The court rejected the submission that any transfer to the appellants would be an act of generosity, since paragraph 5 of the plaint alleged the land was held in trust for the whole family.

p. 1

Legal principles established

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  • A court should never make an order allocating or apportioning land without specifically stating the acreage and location of that land.
  • The words 'for any other sufficient reason' in Order XLIV rule 1 need not be confined to reasons analogous to the preceding grounds, because section 80 of the Civil Procedure Act confers an unfettered right to apply for review.
  • A consent order may be set aside on grounds which would justify setting aside a contract, including ignorance of material facts.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the High Court dismissing the application for review set aside; the appellants were entitled to a review of the consent order
  3. 3.Strict proof required of the appellants' allegation of discovery of new matter, pursuant to section 3(2) of the Appellate Jurisdiction Act
  4. 4.The respondent to have one half of the 4.5 acres of land and the appellants to share equally the remaining portion
  5. 5.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JN
majority

Wrote the judgment

Delivered the leading judgment allowing the appeal, holding that the appellants were entitled to review of the consent order and proposing a fresh division of the 4.5 acres.

I have come to the conclusion that the just course here is to allow the appeal, set aside the order dismissing the application for a review and before the High Court, the appellants were entitled to a review of the consent order.p. 3
AH
concurring

Wrote separately agreeing with Nyarangi JA, adding that the third head of Order XLIV rule 1(1), 'any other sufficient reason', is not necessarily confined to reasons analogous to the two preceding heads.

I also agree with the reasoning of Nyarangi, JA that the third head under Order XLIV rule 1(1), enabling a party to apply for review, namely “or for any other sufficient reason” is not necessarily confined to the kind of reason stated in the two preceding heads in that Sub-rulep. 4
AK
majority
On appeal from
High Court, Nyeri
Jurisdiction invoked
Section 3(2) of the Appellate Jurisdiction Act, Cap 9

Relief refused

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Equal division of the land among the three parties as urged by the first appellant

The court instead ordered the respondent to retain one half of the 4.5 acres with the appellants sharing the remainder

p. 3

Costs

No order as to costs - each party to bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

in no circumstances should a court make an order to allocate or apportion land whose acreage and location is not specifically stated
p. 2Duty of courts when making orders allocating land
section 80 of the Civil Procedure Act confers an unfettered right to apply for a review and so the words “for any other sufficient reason” need not be analogous with the other grounds specified in the order
p. 3Scope of review for any other sufficient reason
I would order that the respondent shall have one half of the 4.5 acres of land and the appellants shall share equally the remaining portion. I would make no order as to costs.
p. 3Final orders - disposition
it was doubted if section 67(2) of the Civil Procedure Act is an absolute bar to an appeal against a consent order on grounds which would justify the setting aside of a contract
p. 1Appeals against consent orders

Issues in the judgment

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minor

The judgment states the consent order was made on June 21, 1983 in the opening passage but ground 3 of the grounds of appeal refers to consent orders of June 21, 1985.

minor

The judgment quotes Tanitalia Ltd v Mawa Handels Anstalt and other East African authorities for the ejusdem generis construction of 'any other sufficient reason' but then rejects that construction in favour of Sadar Mohamed v Charan Singh.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wangechi Kimita v Wakibiru Mutahi [1985] KECA 73 (KLR)", Case Analysis (1985). Civil Appeal (Nyeri), judgment delivered May 23, 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/73/eng@1985-05-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.