Republic v Town Clerk & another Ex-Parte Muriithi Murage & 3 others [2017] KEELC 2029 (KLR)
The bottom line
#The High Court refused to review a land ownership ruling, confirming that the official register — not court presumption — decides who owns co-registered Kenyan property.
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 Intended substitutes should be enjoined in place of the deceased Ex-parte Applicant
- 2.Whether the remedy of review under Order 45 of the Civil Procedure Rules is available in Judicial Review proceedings
- 3.Whether the finding in the judgment of 22nd April 2016 that the suit plot was held in joint tenancy should be reviewed and set aside
Key legal issues
#Availability of review in judicial review proceedings
Despite conflicting Court of Appeal decisions, the Court may exercise its inherent jurisdiction under Section 3A of the Civil Procedure Act to review its own orders in judicial review cases; the application for review was therefore properly before the Court
The Court of Appeal authorities conflicted: Biren Amritlal Shah held there is no jurisdiction to review in Law Reform Act judicial review, while Nakumatt Holdings and Coastal Aquaculture permitted Civil Procedure Rules provisions to be called into aid. The court sided with the latter line, holding that refusing review would hamstring the court from rectifying its own obvious errors. Each case must be determined on its own circumstances.
Whether the joint tenancy finding should be reviewed
Review refused. The copy of register showing tenancy in common from 20th September 1973 was evidence available to the deceased when filing the judicial review application; no new matter, error apparent, or sufficient reason was established
The register showing tenancy in common could have been produced as far back as 20th March 2013 when the judicial review motion was filed, defeating the claim of newly discovered evidence. Further, the ownership point was never at stake in the judicial review, which dealt only with the quashing of sub-division minutes for breach of natural justice. The applicants needed only clarification, not review.
Effect of the Mukazitoni presumption
The joint tenancy presumption applies only where there is no contrary entry in the register; the 1973 register entry showing tenancy in common in equal shares is such a contrary entry and governs proprietorship
The Court of Appeal in Mukazitoni had expressly qualified its presumption with the phrase 'in the absence of a contrary entry in the register'. The register opened on 20th September 1973 records the co-owners as tenants in common in equal shares. The court therefore clarified that proprietorship is determined by that entry. The post-amendment Section 91(2) of the Land Registration Act, effective 7th September 2016, did not apply to the 2016 judgment.
Substitution of a deceased ex-parte applicant
Allowed. The Intended substitutes, being children of the deceased with a limited grant ad litem, were properly enjoined under Order 1 Rule 10(2) of the Civil Procedure Rules
The Court found no doubt that the children of the deceased, holding a limited grant ad litem issued on 8th February 2017, were necessary parties to enable the Court to effectually and completely adjudicate on the matter. Their enjoining was accordingly permitted, even though the substantive review prayer failed.
Legal principles established
#- Judicial review applications determine the legality of processes, not ownership of disputed property
- A court may exercise its inherent jurisdiction to review its own orders even in judicial review cases
- The Mukazitoni presumption of joint tenancy applies only in the absence of a contrary entry in the register
Court orders
#- 1.The Notice of Motion dated 17th February 2017 is dismissed
- 2.It is clarified that the proprietorship of plot No. INOI/KERUGOYA/250/92 between the deceased Ex-parte Applicant and the Interested party is as contained in the copy of register opened on 20th September 1973, namely 'tenants in common in equal shares', that entry being the 'contrary entry' referred to in the Mukazitoni case
- 3.Each party to meet their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 1 Rule 10, Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules
Relief refused
#Review and setting aside of the judgment dated 22nd April 2016 regarding the joint tenancy finding
No discovery of new and important matter, no error apparent on the face of the record, and no other sufficient reason for review was established; the judgment did not determine ownership of the suit plot
Declaration that the deceased Ex-parte Applicant and the Interested party were tenants in common (as a substituted finding on review)
The issue of ownership was never before the Court in the Judicial Review application; the register of 20th September 1973 already records tenancy in common, requiring only clarification
Costs
In view of the circumstances of this case, I direct that the parties each meet 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.
1. The Notice of Motion is dismissed.
it is clarified that the proprietorship of the plot No. INOI/KERUGOYA/250/92 as between the deceased Ex-parte Applicant (MURIITHI MURAGE) and the Interested party (SAMUEL NJIRAINI MURAGE) shall be as contained in the copy of register opened on 20th September 1973 where it is indicated that the said ownership is as "tenants in common in equal shares"
In view of the circumstances of this case, I direct that the parties each meet their own costs.
Judicial Review Applications do not determine ownership of disputed property. They only deal with processes.
It is therefore clear beyond peradventure that the holding in the MUKAZITONI case (supra) only applies "in the absence of a contrary entry in the register".
A review under Order 45 of the Civil Procedure Rules can only be premised on discovery of new and important matter or evidence which, after due diligence, could not be provided by a party and neither was it within that party's knowledge or on account of some mistake or error apparent on the face of the record or on any other sufficient reason. None of the above have been established.
Issues in the judgment
#The judgment inconsistently records the date of death of the Ex-parte Applicant, stating elsewhere that he died on 15th September 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Town Clerk & another Ex-Parte Muriithi Murage & 3 others [2017] KEELC 2029 (KLR)", Case Analysis (2017). Kerugoya Judicial Review Application (Notice of Motion dated 17th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2029/eng@2017-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.