Suleiman Rahemtulla Omar & another v Musa Hersi Fahiye & 5 others [2014] KECA 553 (KLR)

After the fall of the Siad Barre government in January 1991, Somalia became a failed state with no government capable of accrediting diplomats or conferring authority. The 1990 letter of authority, even if genuine, could not survive the demise of its originator. Kenyan ministerial certification and UN confirmation confirmed that former Somali diplomats held no diplomatic status. The trial judge's finding of nullity was therefore correct.

Kibunja relied on an unauthenticated document and a directory never exhibited, and took his client's instructions at face value. Brahmbhatt merely exchanged letters with Kibunja, did not consult the Ministry of Foreign Affairs on procedure or authority, and the haste of the transaction - agreement within four days, registration within ten - compounded the failure. This diligence failure landed the purchasers in their losses.

Though not directly pleaded, evidence showed the appellants paid a substantial sum in cash behind their advocate's back without receipt, and lacked proper due diligence, showing the transaction was not above board. The general rule binding parties to pleadings yields where the matter was canvassed through evidence and submissions. The finding did not prejudice the appellants as the refund order stood.

The statutory provisions protect only a bona fide purchaser for value without notice not privy to fraud. Since the sale itself was fraudulent, the seller had no title to pass, and the registration of the indenture and the conversion from GLA to RTA were all null and void, the question of indefeasibility of title does not arise.

The ex-ambassador, originator of the fraud, ought ideally to have been joined, but he disappeared without a trace after receiving the money, making service impossible. The non-joinder was not intended to shield him, his rebuttal was impossible given the blatant fraud, and his presence could not have validated the transaction. The only claim against him would have been damages.

Having found the contract null and void ab initio for want of the ex-ambassador's capacity, the court held that the issue of breach fell away, as a null and void contract cannot be breached. The court accordingly declined to make any finding on that issue.