Land - registration of land - family land - consolidation - land registered in name of eldest son - whether held in tru st - whether held in absolute proprietorship - land sold to third party before execution of decree - application for review of order - whether suit concluded - whether third party may be joined - Registered Land Act, Cap 300.

Trust - family land held in trust - proof of existence of trust - land consolidation - land registered in name of eldest son - whether held in trust.

Civil Practice and Procedure - third party - joining of third party - whether suit concluded - whether third party can be joined.

Review - application for review - late application - Chamber Summons - application made ten years after decree - review of judgment - no pleadings by one party - improper pleadings - whether proper forum - conditions for granting a review order.

The plaintiff/applicant had instituted a suit against the defendant/

respondent, who was the eldest of his sons, for, among other prayers, a declaration that the land registered in the defendant’s name was held in trust for all the plaintiff’s sons, including the defendant, as the land had been given to the plaintiff by his family for their benefit. The certificate of official search produced before the court showed that the land was registered in the defendant’s name and a caution had been lodged in favour of another of the plaintiff’s sons who claimed a beneficial interest.

The plaintiff alleged that at the time of land consolidation, he went to live on a piece of land different from the suit property leaving the defendant to occupy and use the latter property in trust for himself and his brothers. The plaintiff further alleged that the land was registered in the defendant’s name as he was the eldest son. The defendant gave evidence to the effect that the suit land was registered in his name absolutely and not in trust and that the land on which the plaintiff had gone to live had been given to him by the clan and not purchased by the plaintiff as had been alleged by him.

On October 19, 1982, Hancox J (as he then was) accepted the evidence of the plaintiff and declared that the defendant held part of the land in trust for the plaintiff and the remaining part for himself and his two brothers. The defendant’s appeal against the judgment was dismissed for want of prosecution.

Ten years later, the plaintiff brought the present application for a review of the learned judge’s order so that the plaintiff’s name would be corrected, the name of the second respondent cancelled from the register and a third party (the second respondent) joined in the proceedings. That plaintiff argued that he had been unable to execute the decree as the defendant had clandestinely transferred the suit land to the second respondent to defeat the court order.

The intended second respondent deponed that he had bought the land on November 7, 1991, by public auction following a case in the Kerugoya Senior Resident Magistrate’s Court in which the plaintiff and the defendant had been parties, and that he was subsequently issued with a title to the land. He further deponed that an appeal against the decision had been dismissed by the High Court in Nyeri and that the suit which was the subject of his application had been concluded and therefore a third party could not be joined. Further, it was argued that there was no provision for rectifying the land register under the Registered Land Act, Cap 300.

The defendant did not file any pleadings and the court observed that the plaintiff/applicant’s counsel had not researched on the proper pleadings to present in the dispute and had perhaps not even perused the record of the lower court with regard to the suit referred to in the second respondent’s affidavit.

Held:

1. The sale of the land to the second respondent may or may not have been proper and even though the plaintiff/applicant had been unnecessarily burdened, an application to the High Court by way of Chamber Summons was not a proper forum to untie the complicated knots created by these happenings.

2. A different forum was required in which all the named persons should have an opportunity to disclose all they knew on the matter.

Application dismissed.

Cases

No case referred to.

Statutes

Registered Land Act, Cap 300 Sections 26, 27 & 28

Advocates

Mr Lathigi for Defendant

Charagu v Kaguru

Court of Appeal, at Nairobi June 5, 1986

Hancox JA

Civil Application No NAI 23 of 1986

(In an intended appeal from an order of the High Court at Nairobi,

Gachuhi, Aganyanya JJ)

Appeal – extension of time – for filing notice of appeal – application for – delay in filing Notice of Appeal – delay caused by applicant’s advocate’s mistake – case involving complex land issues - whether applicant entitled to extension of time.

Judicial discretion – exercise of – discretion to extend time to file Notice of Appeal – delay in filing Notice occasioned by mistake of advocate – case involving complex land issues – whether applicant entitled to exercise of discretion in his favour.

The applicant was a party to a suit in the High Court in which judgment had been entered but his advocate had mistakenly filed the Notice of Appeal in that Court rather than in the Court of Appeal. By the time the error was discovered, the time prescribed for the filing of a Notice of Appeal in the Court of Appeal had expired. The applicant applied for an extension of this time, informing the court that he had not been told of the date of the judgment in the High Court and he had only learnt of it over two months after it was delivered.

Held:

1. This was a complicated land case in which it would be unfortunate if justice were not fully seen to be done in the appellate court.

2. Despite the delay of 2 months from the day when the Notice of Appeal was due, the Court would exercise its discretion in favour to of the applicant.

Application allowed.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

Parties in person.

Kiramburi v Githinji

Court of Appeal, at Nyeri May 23, 1986

Hancox JA

Civil Application No NAI 60 of 1986

(In an intended appeal from the judgment of the High Court at Nyeri,

Patel J)

Appeal – extension of time for filing – application for – whether mandatory for application to include Memorandum of Appeal – delay in obtaining copy of judgment to be appealed from - failure by applicant to obtain Registrar’s certificate of delay – effect of – whether applicant precluded from seeking extension of time – Court of Appeal Rules rule 4; 81(1), (2).

The applicant brought an application under rule 4 of the Court of Appeal Rules for an extension of the time within which to institute an appeal. The respondent’s advocate’s main objection to the application was that because no draft Memorandum of Appeal accompanied the application, the nature of the case, the merits of the intended appeal and whether there would be prejudice to one side or the other if the application was or was not granted were not sufficiently disclosed. The appellate judge perused the records of two lower courts in order to ascertain the subject matter of the case.

Held:

1. As a general rule, an applicant for an extension of time should support his application with a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it in order to enable the court to determine whether or not a refusal of the application would appear to cause injustice. This is a salutary rule with which an advocate is advised to comply as failure to do so may well lead to the dismissal of his application.

2. From the perusal of the records of the case in the two lower courts, this Court was satisfied that the appeal was not entirely without prospects of success.

3. (Obiter) Where there is delay in receiving copies of the proceedings of a case from the Registrar for the purposes of filing an appeal, the failure to obtain a certificate of delay under the proviso to rule 81(1) of the Court of Appeal Rules does not preclude an applicant from seeking an extension of time under rule 4, though his task is made easier if the applicant obtains such certificate.

Application allowed.

Cases

1. Mehrunnissa v Mohamed Parvez (No 2) [1979] KLR 234

2. Pollok House Ltd v Nairobi Wholesalers Ltd (No 2) [1972] EA 172

3. Bhatt v Tejwant Singh & another [1962] EA 497

4. Shah v Jamnadas & Co Ltd [1959] EA 838

5. Ribiro v Annah Wanjira Civil Application No NAI 46 of 1982 (unreported)

6. Kuria v Kelen Wahito Civil Application No NAI 19 of 1983 (unreported)

Statutes

1. Magistrates Jurisdiction (Amendment) Act 1981

2. Court of Appeal Rules (cap 9 Sub Leg) rules 4; 81(1), (2)

Advocates

Miss Dar for the Applicant

Mr Ndirangu for the Respondent

Muriithi v Attorney-General

High Court, at Nairobi 1981

Hancox J

Civil Case No 1170 of 1981

Transfer of suit – judicial bias – reasonable apprehension of bias – when court will allow transfer of suit on such grounds – duty of applicant to demonstrate grounds for his apprehension.

Judicial bias – existence of bias - transfer of case – where there exists reasonable apprehension of bias – duty of applicant to demonstrate grounds for his apprehension.

The plaintiff filed a suit challenging his retirement from the police force. On the day of filing the suit, his advocate personally approached a judge of the High Court (Cotran J) with what he said was an urgent application for a temporary declaration preserving the plaintiff’s rights as a pensionable officer of the police force.

The application was instead heard by Hancox J who dismissed it ([1986] KLR 772). The plaintiff’s advocate then raised a preliminary objection that Hancox J should not hear the substantive case as it had been fixed before Cotran J who, being properly seized of it, the Chief Justice did not have the power to take away his jurisdiction and give the case to another judge.

Held:

1. At the time when the Chief Justice directed Cotran J that the case should not come before him but before Hancox J, the file was not before Cotran J as proceedings had taken place and a ruling had been delivered.

2. Before a transfer of a case is granted on the application of a party, a clear case must be made out that the applicant has a reasonable apprehension in his mind that he will not get a fair and impartial hearing before the judicial officer from whom he wants the case transferred.

3. A reasonable apprehension of bias means an apprehension on reasonable grounds which has to be a real apprehension honestly held and reasonably based.

4. There were no grounds, reasonable or otherwise, presented in this case for the plaintiff’s apprehension and no valid reason had been advanced for the bias, partiality or lack of objectivity on the part of the presiding  judicial officer.

5. In a case of manifest urgency and exceptional circumstances that are such that it is not possible for a case to be fixed for hearing, a judge may be approached directly. However, ordinarily, the matter should be dealt with through the civil registry in a regular fashion.

Cases

1. Karanja v Republic Miscellaneous Criminal Application No 199 of 1976 (unreported)

2. Shilenje v Republic [1980] KLR 132

3. Majisu v Majisu Divorce Cause No 8 of 1977 (unreported)

4. Republic v Hashimu [1968] EA 636

Texts

1. Jowitt’s Dictionary of English Law

2. Stroud’s Judicial Dictionary

Statutes

No statutes referred.

Editorial Note

Subsequent to this ruling, Hancox J presided over the substantive suit. His decision thereon has been reported earlier in [1983] KLR 1.