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Court of AppealPartially AllowedCivil Appeal No. 285 of 2007· [2015] KECA 263 (KLR)

Richard Oduol Opole v Commissioner Of Lands & 2 others [2015] KECA 263 (KLR)

Court of Appeal of Kenya
5 November 2015
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
6,824 words in judgment
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The bottom line

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Kenya's Court of Appeal restored a Kisumu landowner's title, cancelling a fraudulently obtained transfer even though the buyer had paid for the property.

What this practically means

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Executive summary

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This first appeal from the High Court at Kisumu (Tanui, J) concerned the fraudulent transfer of Kisumu Municipality Block 12/213, registered in the appellant's name, to the 3rd respondent following an impersonation of the appellant. The High Court had dismissed the appellant's claim, finding that fraud was not proved and that the 3rd respondent was a bona fide purchaser for value. The Court of Appeal, in a single judgment of the court (Musinga, Gatembu Kairu and Murgor, JJ A), framed four issues: proof of fraud against the Commissioner of Lands, the bona fide purchaser status of the 3rd respondent, the effect of non-compliance with section 13A of the Government Proceedings Act, and limitation. The court held that fraud was proved against the 1st respondent: the Land Registrar, Mr. Siwa, irregularly issued a replacement original certificate, arranged the Gazette advertisement himself without any police abstract or statutory declaration, registered the transfer before consent was granted, and introduced the imposters to the purchaser. The 3rd respondent, though a purchaser for value, participated in and had cognizance of the irregularities, losing the status of a bona fide purchaser and the protection of section 143 of the Registered Land Act; his title was therefore void and subject to rectification. The court endorsed the holding that section 13A of the Government Proceedings Act violates Article 48 of the Constitution. The claim was nonetheless time barred against the Government under the Public Authorities Limitation Act, fraud having been discovered on 30th March 1998 with suit filed on 27th April 2000. The appeal was partially allowed: the judgment against the 1st and 2nd respondents was upheld, the judgment against the 3rd respondent was set aside, the transfer was cancelled, the register was rectified to restore the appellant as registered lessee, and the appellant was awarded costs in both courts.

Key legal issues

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01

Whether fraud was proved against the 1st respondent (Commissioner of Lands)

Holding

Yes - fraud was proved against the 1st respondent on a balance of probabilities

Reasoning

The Land Registrar, Mr. Siwa, instantaneously produced an original certificate of lease bearing his own signature when he was not the Registrar at the time of issuance, wrote to the Government Printer for advertisement of the lost title without any police abstract or statutory declaration, disregarded the requirement of publication, registered the transfer before consent was granted, and introduced the imposters to the purchaser. The court found his conduct was aimed at defrauding the appellant of the suit property.

p. 8
02

Whether the 3rd respondent was a bona fide purchaser for value without notice

Holding

No - his role in the irregular transfer deprived him of that status, so his title was void and the register could be rectified under section 143 of the Registered Land Act

Reasoning

Although a purchaser for value, the 3rd respondent drew attention to the missing title, was present when the replacement was sought, received an irregularly issued original certificate, knew of the inadequacies, and registered the transfer before consent to transfer had been granted. As a seasoned land dealer these omissions could not have gone unnoticed. Section 143 of the Registered Land Act protects a purchaser in possession only where he lacked knowledge of, and did not cause or substantially contribute to, the fraud - protection he forfeited.

03

Whether unpleaded fraud could be raised against the 3rd respondent on appeal

Holding

No - fraud not pleaded and particularized is not an issue for determination

Reasoning

The plaint particularized fraud only against the 1st respondent. Allowing the appellant to rely on unparticularised allegations against the 3rd respondent would ambush him and deny him a fair hearing, amounting to an abuse of process. However, the court's ultimate findings on the 3rd respondent's complicity were based on his own pleaded defence and testimony.

04

Effect of failure to serve notice under section 13A of the Government Proceedings Act

Holding

The requirement is unconstitutional as violating Article 48 (access to justice), following Kenya Bus Service Ltd v Minister for Transport

Reasoning

The court adopted Majanja, J.'s holding that the notice requirement violates Article 48 of the Constitution because the law should not impose hurdles on the accountability of Government through the courts. No further consideration was needed.

p. 10
05

Whether the claim was time barred

Holding

Time barred against the 1st and 2nd respondents (12-month limitation from discovery of fraud), but not against the 3rd respondent whose title claim fell under the 12-year period in section 7 of the Limitation of Actions Act

Reasoning

Fraud was discovered on 30th March 1998 but the suit was filed on 27th April 2000, over two years later, exceeding the 12-month period in the Public Authorities Limitation Act. Part III of the Limitation of Actions Act (including the fraud discovery rule) applies to that Act. As against the 3rd respondent, a claim to recover land is not time barred within 12 years, so he could not rely on limitation.

p. 11
06

Applicability of the Sale of Goods Act to the transfer of land

Holding

Inapplicable - land is immovable property outside the definition of goods

Reasoning

Section 2(1) of the Sale of Goods Act defines goods as chattels personal and things attached to land agreed to be severed. A disposition of land is not a sale of goods, so sections 23 and 24 on passing of title by a seller had no application.

p. 5

Legal principles established

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  • Allegations of fraud must be specifically pleaded, particularized and strictly proved; unparticularised fraud cannot be introduced through evidence without violating the right to a fair hearing
  • A proprietor loses the protection of the registered title and the status of a bona fide purchaser for value without notice where his acts substantially contributed to the fraud or mistake in the registration
  • The Sale of Goods Act does not apply to dispositions of land, which is immovable property outside the statutory definition of goods
  • Section 13A of the Government Proceedings Act (requiring notice of intention to sue the Government) is unconstitutional as contrary to Article 48 on access to justice
  • Where fraud is proved against a defendant or his agent, limitation does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud (section 26 of the Limitation of Actions Act as incorporated into the Public Authorities Limitation Act)

Court orders

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  1. 1.The cancellation of the purported sale and transfer of Kisumu Municipality Block 12/213 effected by the 1st respondent to the 3rd respondent
  2. 2.A rectification of the title to Kisumu Municipality Block 12/213 to read Richard Oduol Opole as registered Lessee
  3. 3.The appellant shall have the costs in the High Court and the costs of this appeal

Authorities

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Legislation

  • Registered Land Act, Chapter 300section 33
  • Registered Land Act, Chapter 300section 35
  • Registered Land Act, Chapter 300section 28
  • Registered Land Act, Chapter 300section 143
  • Registered Land Act, Chapter 300section 144
  • Registered Land Act, Chapter 300section 38(1)
  • Sale of Goods Actsection 2(1); sections 23 and 24
  • Government Proceedings Actsection 13A
  • Public Authorities Limitation Act, Cap 39section 3(1) and (2); section 2(1); section 6
  • Limitation of Actions Act, Cap 22section 26; section 42; section 7; section 31; section 22; section 27; section 4(2)
  • Civil Procedure RulesOrder VI rule 8(1); Order XXI rule 10
  • Constitution of KenyaArticle 48

Cases cited (4)

  • Kenya Ports Authority vs Kuston (Kenya) Limited
    (2009) 2 EA 212
  • Gudka vs Dodhia
    Civil Appeal No. 21 of 1980
  • R G Patel Lalji Makanji
    [1957] EA 314
  • Kenya Bus Service Ltd & Another vs Minister for Transport & 2 Others
    (2012) eKLR
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 112 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court (the judgment does not cite a specific provision, describing the appeal as 'a first appeal')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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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, "Richard Oduol Opole v Commissioner Of Lands & 2 others [2015] KECA 263 (KLR)", Case Analysis (2015). Civil Appeal No. 285 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/263/eng@2015-11-05

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