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Court of AppealPartially AllowedCivil Appeal 25 of 2002· [2009] KECA 453 (KLR)

MUCHANGA INVESTMENTS LTD v SAFARIS UNLIMITED (AFRICA) LTD & 2 others [2009] KECA 453 (KLR)

Court of Appeal of Kenya
5 June 2009
SBS.E.O. BosireJOJ.W. Onyango OtienoJNJ.G. Nyamu
6,610 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck down a caveat over land, confirming that only genuine, provable interests in property can support caveats and that tenants cannot claim adverse possession.

What this practically means

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Executive summary

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This was an appeal against a half-page ruling of the High Court (Khamoni, J) delivered on 2nd March 1999 refusing to strike out an Originating Summons seeking extension of a caveat registered over the appellant's property L.R. 3586/3. The caveat, registered in 1994, claimed both a purchaser's interest and adverse possession on behalf of the 1st respondent and its director, Mr Church, who had occupied about 3 acres since 1969. The Court of Appeal framed three issues: whether section 57 of the Registration of Titles Act contemplates a summary procedure or a trial; whether the respondents were entitled to register the caveat; and whether the Originating Summons constituted an abuse of process. The Court held that section 57(8) creates a speedy, summary process; that neither an admitted tenancy nor adverse possession is a registrable interest; that a purchaser's interest unsupported by a sale agreement cannot sustain a caveat; and that occupation under a tenancy can never be adverse until the tenancy is terminated. The letters written between 1990 and 1996 admitting tenancy were irreconcilable with the adverse possession claim, and registering a caveat over the entire 140 acres when only 3 acres were claimed was oppressive. The Court found the Originating Summons to be an abuse of process, instituted without bona fides and contrary to section 57, and criticised the terse ruling for contravening Order XX rule 4 of the Civil Procedure Rules and for wasting judicial time. The appeal was allowed, the High Court order set aside, the Originating Summons dismissed, and costs awarded to the appellant, with a warning to advocates over the ten-year delay.

Key legal issues

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01

Nature of the procedure under section 57 of the Registration of Titles Act

Holding

Section 57(8) contemplates a summary procedure; the court is required to decide whether to extend or discharge the caveat on the material before it, even ex parte, and should not defer determination to a full trial.

Reasoning

Section 57(8) requires the court, once satisfied the caveatee has been summoned, to make orders on such evidence as it may require, even ex parte. The documentary material before the High Court (letters admitting tenancy and the caveat application itself disclosing contradictory interests) was sufficient for summary determination, so deferring to a future trial was a wrongful exercise of discretion and an abdication of the court's role.

p. 7
02

Registrability of the interests claimed under the caveat

Holding

Neither the admitted tenancy nor adverse possession was a registrable interest under section 57; a purchaser's interest required a sale agreement; a right of first refusal is not caveatable.

Reasoning

The caveat claimed both a purchaser's interest and adverse possession - inconsistent interests apparent on the face of the application. Adverse possession is governed by the Limitation of Actions Act and its existence is a matter of proof, not a defined registrable interest. The right of first refusal claimed in the 1993 letter was, per Kadyschuk v Sawchuk, a right in contract creating no present interest in land. The registration over the whole 140 acres while only 3 acres were claimed was oppressive.

p. 7
03

Adverse possession and tenancy

Holding

Possession under a tenancy or licence is not adverse; time cannot run in the occupier's favour until the tenancy or licence is terminated.

Reasoning

Adopting Wambo v Njuguna, Waweru v Richu and Jandu v Kilipal, the Court held that occupation with permission can only be either permissive or adverse, never both. Mr Church's letters admitting tenancy (1990-1996) meant neither he nor his company could claim adverse possession while the tenancy subsisted, so the Originating Summons could not succeed on that footing.

p. 7
04

Abuse of the court process

Holding

The Originating Summons, instituted in the face of admitted tenancy and lacking any valid legal foundation under section 57, was an abuse of process - frivolous, vexatious, oppressive and wanting in bona fides.

Reasoning

Applying Sarak v Kotoye (illustration (e) - process premised on frivolity or recklessness with no locus in law) and Beinosi v Wiyley, the Court found the respondent knowingly and dishonestly used the legal process for an ulterior purpose. It caused a ten-year delay, prejudice to the appellant and offended the public interest in efficient litigation.

p. 10
05

Duty of the trial court and judicial time management

Holding

A trial judge must identify crucial issues and determine them expeditiously; a party's right to a day in court arises only where there is something to hear, and litigants are entitled only to so much of the court's time as is necessary.

Reasoning

Relying on Ashmore v Corp of Lloyds, Machira v Wangechi Mwangi (Order XX rule 4 requiring self-contained rulings), Mucheru v Mucheru and Fremar Construction, the Court held the terse half-page ruling contravened Order XX rule 4 and that deferring determination squandered judicial time, a resource whose management affects the entire administration of justice.

p. 9

Legal principles established

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  • A caveat under section 57 of the Registration of Titles Act may only support a registrable interest; an unproven purchaser's interest unsupported by a sale agreement and a claim of adverse possession are not registrable interests.
  • Adverse possession claims are governed by sections 37 and 38 of the Limitation of Actions Act, not section 57 of the Registration of Titles Act.
  • A tenant in possession cannot claim adverse possession; time does not run against the landlord until the tenancy is terminated.
  • A mere contractual right in land does not give rise to a registrable interest unless it is capable of crystallizing into an interest in land; a right of first refusal is not caveatable.
  • An application under section 57(8) of the Registration of Titles Act to extend a caveat is a summary, speedy process, not a protracted trial; the court must determine whether to extend or discharge the caveat on the material before it.
  • A caveat cannot properly be registered over the whole of a property where the claimed interest relates only to a small portion; doing so is oppressive.
  • Instituting an Originating Summons for extension of a caveat while the claimant's own documents admit a tenancy, and pleading purchaser's interest and adverse possession together, constitutes an abuse of the court process.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the High Court (Khamoni, J) dismissing the appellant's chamber summons set aside
  3. 3.Originating Summons dismissed
  4. 4.Costs of the appeal and of the suit to the appellant

Authorities

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Legislation

  • Constitution of KenyaSection 75(6)
  • Registration of Titles Act (Cap 281)Section 57(1), 57(8)
  • Registration of Titles Act (Cap 281)Section 32
  • Law of Contract Act (Cap 23)Section 3(3)
  • Limitation of Actions ActSections 37, 38
  • Evidence ActSection 121
  • Appellate Jurisdiction ActSection 3
  • Civil Procedure RulesOrder VI rule 13(1)(d) and rule 16
  • Civil Procedure RulesOrder XX rule 4
  • Civil Procedure RulesOrder XXXVI

Cases cited (16)

  • Wambo v Njuguna
    [1983] KLR 172
  • Boyes v Gathure
    [1969] EALR 385
  • Samuiel Miki Waweru v Jane Njeri Richu
    Civil Appeal No. 122 of 2001 (UR)
  • Jandu v Kilipal
    [1975] EA 225
  • Sisto Wambugu v Kamau Njuguna
    (1982-88) 1 KLR 217
  • William v Docks
    2004 MBCD COM LII
  • Hyde v Pearce
    [1982] All ER 1029
  • Kadyschuk v Sawchuk
    2006 MBCA 18 (COM LII)
  • J.P. Machira t/a Machira & Co. Advocates v Wangechi Mwangi & Another
    Civil Appeal No. 179 of 1997 (unreported)
  • Ashmore v Corp of Lloyds
    [1992] 2 All ER 486
  • Mucheru v Mucheru
    [2002] 2 EA 455
  • Saleh Mohammed Mohamed v PH Saldanha
    Civil Case Number 243 of 1953 (UR)
  • Fremar Construction Co Ltd v Mwikisiti Navi Shah
    2005 eKLR
  • Beinosi v Wiyley
    1973 SA 721 [SCA]
  • Attahiro v Bagudo
    1998 3 NWLR pt 545 656
  • Sarak v Kotoye
    (1992) 9 NWLR (pt 264) 156
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 133 of 1998 (O.S)
Jurisdiction invoked
First appeal to the Court of Appeal under the Appellate Jurisdiction Act (section 3 invoked in submissions)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "MUCHANGA INVESTMENTS LTD v SAFARIS UNLIMITED (AFRICA) LTD & 2 others [2009] KECA 453 (KLR)", Case Analysis (2009). Civil Appeal 25 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/453/eng@2009-06-05

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