Mbuthia V Kamuri eKLR
|civ case 1279 of 81||09 May 2000|
Alan Robin Winston Hancox
High Court at Nairobi (Milimani Law Courts)
Mbuthia v Kamuri
Mbuthia v Kamuri eKLR
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.
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.
No case referred to.
Registered Land Act, Cap 300 Sections 26, 27 & 28
Mr Lathigi for Defendant