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Court of AppealDismissedCivil Application Sup. No. 12 of 2013· [2013] KECA 127 (KLR)

Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] KECA 127 (KLR)

Court of Appeal of Kenya
8 November 2013
5,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to let a land dispute reach Kenya's Supreme Court, confirming that only disputes affecting the wider public qualify.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kihara Kariuki P, Nambuye and Ouko JJ.A) on the applicants' application dated 13th May 2013 for certification/leave to appeal to the Supreme Court under Article 163(4)(b) of the Constitution against the Court of Appeal's judgment of 26th April 2013 in Civil Appeal No. 225 of 2006, which had dismissed the applicants' appeal from Ang'awa J's decision in HCCC No. 2325 of 1995. The underlying dispute concerned a multiple sale of a 2.5-acre parcel (L.R. No. 13459/41); the courts below made concurrent findings that the applicants, having notice of the earlier sale to Mathare and Rimui, dealt fraudulently, and that the transferee company did not exist at the time of registration. The applicants argued that the judgment diluted the doctrine of indefeasibility of title and that certification was warranted on grounds of general public importance, substantial miscarriage of justice, arguability, and investor protection. The Court held that the miscarriage-of-justice test in Section 16 of the Supreme Court Act is exercisable only by the Supreme Court, that arguability and investor-protection grounds are irrelevant to its certification jurisdiction, and that the intended appeal raises no matter of general public importance since the law on fraud and indefeasibility under the Torrens system is settled by a long line of authority and the dispute turns on concurrent findings of fact. The application was dismissed with costs.

Key legal issues

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01

Whether the intended appeal raises a matter of general public importance under Article 163(4)(b)

Holding

It does not; the dispute is a protracted multiple sale of one parcel of land whose determination does not go beyond the parties, and there is no uncertainty in the law on fraud or indefeasibility of title.

Reasoning

The Court applied the Steyn criteria: the intending appellant must show an issue transcending the particular case with significant public interest bearing, and that the question of law arose and was determined in the courts below. Here both the High Court and the Court of Appeal made concurrent findings of fraud against the applicants on the evidence, and a long line of Kenyan and Privy Council authority already settles the law on fraud and indefeasibility under the Torrens system. Factual contests between parties cannot ground certification.

p. 10
02

Applicability of the substantial miscarriage of justice test in Section 16 of the Supreme Court Act

Holding

Section 16(2)(b) creates a jurisdiction exercisable by the Supreme Court, not the Court of Appeal, and grounds of arguability and investor protection have no relevance to this Court's certification jurisdiction.

Reasoning

The Court relied on its prior decision in Greenfield Investments Ltd v Baber Alibhai Mawji and the Supreme Court's majority decision in Steyn, which held that mere apprehension of miscarriage of justice is a matter for lower superior courts and not a proper basis for certification. Article 163(4)(b) prescribes only two routes: constitutional interpretation as of right, and matters of general public importance with leave.

p. 7
03

The doctrine of fraud and indefeasibility of title under the Torrens system

Holding

The law is settled: a bona fide purchaser for value without notice of fraud acquires an indefeasible title, but that protection does not avail a purchaser with notice of an unregistered interest; fraud defeats indefeasibility.

Reasoning

The Court traced the Torrens system from Gibbs v Messer, defining fraud under Section 2 of the repealed Registration of Titles Act as proved knowledge of an unregistered interest knowingly and wrongfully defeated by registration. Concurrent findings showed the applicants knew of the earlier sale to Mathare and Rimui and that the transferee company did not exist at registration, so Section 23 protection was unavailable.

p. 9

Legal principles established

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  • An application for certification to appeal to the Supreme Court under Article 163(4)(b) must originate in the Court of Appeal.
  • The substantial miscarriage of justice test in Section 16 of the Supreme Court Act is not available in certification applications before the Court of Appeal; it is a jurisdiction exercisable by the Supreme Court.
  • Certification requires that the issue transcend the circumstances of the particular case and have a significant bearing on the public interest; determinations of fact between parties are not a basis for certification.
  • Under the Torrens system/Registration of Titles Act, the title of a bona fide purchaser for value without notice of fraud is indefeasible and can only be challenged on fraud or misrepresentation to which the purchaser is a party.
  • An appellate court will not allow a party to pursue a case different from the one agitated at trial.

Court orders

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  1. 1.The application dated 13th May 2013 for leave/certification to appeal to the Supreme Court is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(b)
  • Constitution of Kenya, 2010Article 163(7)
  • Constitution of Kenya, 2010Article 159(2)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Supreme Court RulesRule 24
  • Court of Appeal RulesRule 43
  • Supreme Court ActSection 16; Section 16(2)(b)
  • Registration of Titles Act (repealed)Sections 2, 23, 23(1)
  • Land Registration Act

Cases cited (19)

  • Hermanus Phillipus Steyn V. Giovanni Guecchi Ruscone
    Supreme Court Application No. 4 of 2012
  • Samuel Kamau Macharia & Another V. Kenya Commercial Bank Ltd & 2 others
    Civil Application No. 2 of 2012
  • Peter Oduor Ngoge V. Hon. Francis Ole Kaparo & 5 others
    Supreme Court Petition No. 2 of 2012 (2012) eKLR
  • Board of Governors, Moi High School Kabarak & Hon. Daniel Toroitich Arap Moi V. Malcom Bell
    Civil Application No. 12 and 13 of 2013 (consolidated)
  • Green field Investments Limited V. Baber Alibhai Mawji
    Civil Application No. 5 of 2012
  • Haiderali Bhimji Motani v N. K. Thobani & Ano.
    [1945] 12 EACA 37
  • Gibbs V. Messer
    [1891] AC 247 P.C.
  • Lwanga V. Registrar of Titles
    Misc. Cause No. 7A of 1977 (1980) HCB 24
  • Moya Drift Farm Ltd V. Theuri
    [1973] E.A. 114
  • Mutsonga V. Nyati
    H.C. Msa 295/1976
  • Hannah Wangui Ithebu & Ano. V. Joel Ngugi Magu & 2 Others
    Civil Appeal No. 86 of 1999 [2005] eKLR
  • Permanent Markets Society & 11 Others V. Salima Enterprises & 2 others
    Civil Appeal No. 185 of 1997
  • Dr. Joseph Arap Ngok V. Justice Moijo ole Keiwua & 5 others
    Civil Appeal No. Nai. 60 of 1997
  • Njilux Motors Ltd V. KP&L & Nairobi City Commission
    Civil Appeal No. 206 of 1998
  • Job Kipnandi Chebon V. Makana Transporters Ltd & 3 Others, Edwin Wambua & Others
    Mombasa HCCC No. 274 of 2009
  • Russel & Co. Ltd. V. Commercial Bank of Africa Ltd.
    [1986] KLR 633
  • Wreck Motors Enterprises Ltd V. Commercial Bank of African Ltd & Ano.
    [1986] KLR 633
  • Rose Njoki Kingau & Ano. V. Shaba Trustees Ltd. & Another
    Civil Application No. Nai 111 of 2010
  • Elijah Arap Bii V. Samuel Gitau & KCB
    Civil Appeal No. 155 of 2006
On appeal from
High Court of Kenya at Nairobi
HCCC No. 2325 of 1995
Jurisdiction invoked
Article 163(4)(b) of the Constitution - application for certification/leave to appeal to the Supreme Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] KECA 127 (KLR)", Case Analysis (2013). Civil Application Sup. No. 12 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/127/eng@2013-11-08

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