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Court of AppealDismissedCivil Appeal 26 of 2016· [2022] KECA 957 (KLR)

Kimuri v Commissioner of Lands & 5 others

Court of Appeal
26 August 2022
HOHannah M OkwenguFSF SichaleAMA Mbogholi-Msagha
1,020 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to cancel a land title because the applicant took Kshs 300,000 and helped the survey, so he can't complain later.

What this practically means

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Executive summary

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The appellant, Wilson Theuri Kimuri, had sought an order of certiorari in the High Court at Nyeri to quash the registration of land title Nanyuki Municipality Block 12/122 in favour of the current registered owners. Ombwayo, J. dismissed the motion with costs on 22nd September 2015, departing from his findings in related Civil Appeals 60, 61 and 62 of 2015 where certiorari had been granted. The appellant appealed on six grounds, contending that the judge erred in treating certiorari as discretionary, in finding no procedural impropriety yet refusing the orders, and in failing to ensure parity of reasoning with the related appeals. The Court of Appeal at Nyeri (Okwengu, Sichale and Mbogholi-Msagha, JJA) dismissed the appeal. It held that the conclusions reached in the related appeals - including the absence of procedural impropriety by the Commissioner of Lands, Chief Land Registrar and Municipal Council of Nanyuki - applied equally to this appeal. Critically, the court found that the appellant had received Kshs 300,000 from the 5th respondent to access the suit parcel and had allowed survey works to proceed, with no evidence of refund; having facilitated the survey, he could not fault the subsequent allocation and registration. Judicial review reliefs being discretionary, certiorari would not issue in his favour. The court found the judge's departure from parity of reasoning justified by these distinct facts. The appeal was dismissed in its entirety with no order as to costs. The judgment binds subordinate courts on the discretionary, equity-based nature of certiorari and the application of related-appeal conclusions to identical facts.

Key legal issues

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01

Discretionary nature of certiorari and conduct of the applicant

Holding

Certiorari would not issue because the appellant received Kshs 300,000 from the 5th respondent, allowed survey works, and never refunded the money, showing acquiescence in the alienation

Reasoning

The High Court found the appellant facilitated the surveyor's access to the suit parcel and was therefore aware the 5th respondent had purchased from the 4th respondent. Given that judicial review reliefs are discretionary, the court held the discretionary remedy should be withheld from a party who participated in and benefited from the very process he later sought to impugn.

p. 2
02

Parity of reasoning with related appeals

Holding

The judge's departure from the related appeals was justified by the distinct fact of the Kshs 300,000 payment and non-refund; the appeal lacked merit

Reasoning

The appellant argued the judge failed to ensure parity of reasoning with Civil Appeals 60, 61 and 62 of 2015 where certiorari had issued. The court held the judge gave reasons for departing - the payment and facilitation of survey - and that the conclusions in the related appeals, including absence of procedural impropriety by the State respondents, applied here.

Legal principles established

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  • Judicial review reliefs, including certiorari, are discretionary and equitable; a party who has facilitated or acquiesced in the impugned process cannot obtain them
  • Conclusions reached in related appeals on identical facts and law apply equally to a related appeal raising the same issues

Court orders

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  1. 1.The appellant's appeal is dismissed in its entirety
  2. 2.No order as to costs
On appeal from
High Court of Kenya at Nyeri
Misc. Application No. 4 of 2013
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution/statute (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kimuri v Commissioner of Lands & 5 others", Case Analysis (2022). Civil Appeal 26 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/957/eng@2022-08-26

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