Kimita vs Wakibiru [1985] KECA 120 (KLR)
The bottom line
#Kenya's Court of Appeal set aside a land-sharing agreement after finding the true acreage had been misrepresented, and confirmed courts can review consent orders on sufficient reason.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent deliberately and falsely misrepresented the acreage of the land when the consent order was made on June 21, 1983
- 2.Whether the appellants' discovery of the true acreage after the survey amounted to a sufficient reason for review under Order 44 rule 1 of the Civil Procedure Rules
- 3.Whether the words 'for any other sufficient reason' in Order 44 rule 1 are confined to reasons analogous to the grounds specified immediately before them
Key legal issues
#Misrepresentation as a ground to set aside a consent order
On the balance of probabilities the respondent misrepresented the acreage as 3.1 acres to entice the appellants to accept 0.75 acres each, justifying setting aside the consent order.
The respondent did not specifically deny on oath the allegation that he gave the acreage as 3.1; he had occupied the land. The pleadings and the proceedings before V V Patel J were silent on acreage. The court found it more likely than not that the misrepresentation occurred on or before June 21, 1983, and that the appellants reasonably accepted the respondent's figure until the survey revealed 4.5 acres.
Scope of 'for any other sufficient reason' under Order 44 rule 1
The appellants' discovery of the true acreage during the survey was a sufficient reason for review; the phrase need not be confined to reasons analogous with the preceding grounds.
Nyarangi JA initially canvassed the ejusdem generis approach from Tanitalia Ltd but concluded that section 80 of the Civil Procedure Act confers an unfettered right to apply for review, so the phrase need not be analogous. Hancox JA agreed that the two preceding heads do not form a genus with which the general head must be analogous. The acts of the appellants in witnessing the survey were treated as analogous to discovery of new and important matter.
Beneficial entitlement to family land under Kikuyu customary law
The land was family land to which each male child is entitled to a beneficial or legal share under Kikuyu customary law, so the appellants' claim was not founded on the respondent's generosity.
It was common ground that the land was registered in the respondent's name after consolidation of portions belonging to his deceased father and uncles, the appellants' husbands. The court rejected the submission that any allocation to the widows was an act of generosity, treating the trust claim in the plaint as underlying the consent order the respondent had accepted.
Legal principles established
#- A court should not make an order allocating or apportioning land whose acreage and location are not specifically stated, since such a description lacks an essential particular.
- The words 'for any other sufficient reason' in Order 44 rule 1 need not be analogous with the other specified grounds for review, because section 80 of the Civil Procedure Act confers an unfettered right to apply for review.
- A consent order may be set aside on review where a party was ignorant of material facts or was misled, for example as to the acreage of land allocated under the order.
Court orders
#- 1.Appeal allowed
- 2.Order of the High Court dated March 23, 1984 dismissing the application for review set aside
- 3.Review of the consent order of June 21, 1983 granted
- 4.The respondent to have one half of the 4.5 acres of land and the appellants to share equally the remaining portion
- 5.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Held that the respondent misrepresented the acreage (3.1 instead of 4.5 acres) when the consent order was recorded, and that the appellants' discovery of the true acreage during the survey constituted sufficient reason for review under Order 44 rule 1. Allowed the appeal, set aside the order dismissing the review application, granted the review, and re-apportioned the land.
In the circumstances, 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 reviewp. 3
Wrote the judgment
Agreed with Nyarangi JA's judgment and conclusions; noted that Hancox JA also agreed, so the orders proposed by Nyarangi JA became the orders of the court.
Nyarangi J A’s judgment embraces the essential facts and the relevant law to be applied to them in this appeal, and, with respect I am in agreement with the conclusions he has reached.p. 4
Wrote the judgment
Agreed with Nyarangi JA. Added that the illiterate appellants probably did not know the true acreage until the survey, that the disproportionate shares under the consent order showed they were misled, and held that 'for any other sufficient reason' in Order XLIV rule 1(1) 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 headsp. 5
- On appeal from
- High Court of Kenya at Nyeri
- High Court Civil Case No 12 of 1979
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (Cap 9), including its power under section 3(2) to grant relief the High Court could have granted
Relief refused
#The first appellant's oral submission that the land should be shared equally among all three parties
The court instead apportioned one half to the respondent and one quarter each to the appellants, taking account of the respondent having looked after the land.
Costs
No order as to costs - each party to bear their own costs
Quotable passages
#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 the circumstances, 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 hold that on the material before the High Court, the appellants were entitled to a review of the consent order.
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.
I would say that in no circumstances should a court make an order to allocate or apportion land whose acreage and location is not specifically stated
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
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 the sub-rule, which do not in themselves form a genus or class of things with which the third, general, head, could be said to be analogous.
Issues in the judgment
#Internal inconsistency in the date of the survey - the principal judgment and the header of the appeal say the consent order was made on June 21, 1983, but one ground of appeal refers to a consent order of June 21, 1985, and Hancox JA dates the survey February 3, 1954 where the principal judgment says February 3, 1984.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kimita vs Wakibiru [1985] KECA 120 (KLR)", Case Analysis (1986). Civil Appeal No 80 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/120/eng@1985-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.