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Court of AppealDismissedCivil Appeal No. 5 of 2014· [2014] KECA 442 (KLR)

Evanson Wambugu Gachugi v Simon Wainaina Gatwiki & 2 others [2014] KECA 442 (KLR)

Court of Appeal
22 July 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeOTOtieno-Odek
4,111 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal cancelled a land transfer done days after the seller died, ruling documents prepared by an unqualified advocate are invalid.

What this practically means

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Executive summary

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This was a first appeal from the judgment of Sergon, J. in Nyeri H.C.C.C. No. 38 of 2003, in which the High Court declared that land parcel Chinga/Gikigie/800 had been illegally and fraudulently transferred to the appellant, restrained dealings with it, and ordered the Land Registrar to cancel the appellant's title and issue a new title in the name of the 1st respondent, administrator of the deceased registered proprietor's estate. The vendor, Josiah Gichau Gatwiki, died on 17th July, 2002; the transfer to the appellant was effected in late July 2002, days after his death, and before letters of administration issued. The appellant argued that no fraud was proved to the standard required for rectification, that a valid Land Control Board consent had been obtained, and that he should not be penalised for documents drawn by an advocate without a practicing certificate. The Court of Appeal, applying its first-appeal duty to re-evaluate the evidence, affirmed. It held that the circumstances - the transfer after the vendor's death without involving the estate, the absence of the original title, inconsistent consideration figures, and the Land Registrar's inability to produce any transfer documents - supported the trial Judge's finding of collusion with the Lands Office. Following National Bank of Kenya Ltd v Wilson Ndolo Ayah, the Court held that documents drawn by an advocate without a valid practicing certificate are invalid and of no legal effect, rejecting the innocent-client excuse on public policy and clean-hands grounds. Section 143(1) of the repealed Registered Land Act empowered the rectification ordered. The appeal was dismissed with costs to the 1st respondent, the High Court judgment being affirmed in its entirety.

Key legal issues

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01

Validity of documents prepared by an advocate without a practicing certificate

Holding

The Court affirmed that legal instruments prepared by an unqualified advocate are invalid and of no legal effect, following National Bank of Kenya Ltd v Wilson Ndolo Ayah, and rejected the innocent-client argument.

Reasoning

The Court endorsed Ndolo Ayah: the Law Society annually publishes a list of advocates holding practicing certificates, of which the public is deemed to have notice; invalidating such documents serves public policy against aiding illegalities; and the innocent party has a remedy under the Advocates Act for recovery of fees. The appellant, moreover, effected a transfer after the vendor's death without involving the estate, and could not invoke equity with unclean hands.

p. 6
02

Rectification of the register under the repealed Registered Land Act for fraud or mistake

Holding

The High Court correctly found collusion between the appellant and the Land Registrar and correctly ordered rectification of the register under Section 143(1) of the repealed Registered Land Act.

Reasoning

The transfer was effected after the registered proprietor's death, without surrender of the original title (which remained with the 1st respondent), with inconsistent consideration figures (Kshs.425,000 in the agreement, Kshs.375,000 in the receipts, Kshs.200,000 in the Land Control Board consent), and with no explanation from the Land Registrar, who claimed the transfer documents were lost in a break-in. The trial Judge was entitled to find a collusion to unlawfully transfer the land.

p. 7
03

Registration of title in the name of the administrator of the deceased's estate

Holding

There was no error in ordering that the title be issued in the name of the 1st respondent in his capacity as administrator of the deceased's estate.

Reasoning

The 1st respondent held letters of administration issued in April 2003. Having found the transfer fraudulent and ordered cancellation, the court's direction that a new title issue in the name of the estate's administrator properly restored the property to the estate rather than divesting it. The Court found no fault in that mode of relief.

p. 7

Legal principles established

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  • Any legal instrument or pleading prepared or filed by an advocate without a valid practicing certificate is invalid and of no legal effect, and courts will not aid the perpetuation of such illegality notwithstanding the innocence of the client.
  • Where a proprietor of land dies, a valid transfer of his land requires the involvement of the deceased's estate; a transfer effected after the vendor's death without involving the estate may be rectified as fraudulent or mistaken under the rectification provisions of the (repealed) Registered Land Act.
  • On a first appeal, the Court of Appeal must re-evaluate the evidence and determine the matter afresh, making due allowance for the fact that it did not hear or see the witnesses.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the 1st respondent

Authorities

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Legislation

  • Registered Land Act (repealed)Section 143 (as referred to in grounds of appeal) and Section 143(1) and 143(2)
  • Advocates ActProvisions on practicing certificates and recovery of fees from unqualified advocates
  • Stamp Duty ActSection 19
  • Government Proceedings Act30 days' notice provision

Cases cited (5)

  • Selle v Associated Motor Boat Company
    [1968] EA 123
  • National Bank of Kenya Ltd. vs Wilson Ndolo Ayah
    Nairobi C.A. No. 119 of 2002
  • Abraham Mwangi Njihia vs Boundaries Commission & 2 Others
    Milimani H.C. Election Appeal No. 3 of 2013
  • Kenya Power and Lighting Co. Ltd., vs Mahinda T/A Nyeri Trade Centre
    Civil Appeal (Application) No. 148 of 2004 (2005) KLR
  • Charles Mwangi Karingithi vs Benson G. Macharia & Kimotho Mugambi
    Nyeri H.C.C.C. No. 315 of 1996
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 38 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate jurisdiction of the Court of Appeal (Constitution of Kenya, 2010, Article 164)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (23)

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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, "Evanson Wambugu Gachugi v Simon Wainaina Gatwiki & 2 others [2014] KECA 442 (KLR)", Case Analysis (2014). Civil Appeal No. 5 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/442/eng@2014-07-22

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