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Court of AppealDismissedCivil Appeal No. 21 of 2016· [2016] KECA 89 (KLR)

Kawaljeet Singh Rekhi v Peter Wainaina Kamau & 2 others [2016] KECA 89 (KLR)

Court of Appeal of Kenya
25 November 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
6,423 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a buyer who ignores court papers and skips thorough land searches loses any claim to be an innocent purchaser.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Makhandia, Ouko and M'inoti, JJ.A) dismissed an appeal against the High Court's decision in a constitutional petition reinstating the 1st respondent as proprietor of a beach plot, Kwale/Galu/Kinondo/46. The plot had been cancelled to a claimant, Tsolozi, by the Msambweni Land Disputes Tribunal in proceedings held without service on the 1st respondent, the registered proprietor since 1977. Tsolozi sold the plot to the appellant in December 2005; the appellant was later served with judicial review pleadings, including a leave order operating as a stay, yet proceeded to subdivide the plot into two parcels, had restrictions lifted unprocedurally by the Registrar, and closed the original register. The Court framed three issues: whether the appellant was an innocent purchaser for value without notice, whether he acquired proprietary rights, and whether the 1st respondent's constitutional rights were breached. It held that the appellant failed due diligence (historical searches and physical inspection would have revealed the 1st respondent's uncancelled entry and possession), knew of competing claims, and lacked clean hands; the lis pendens doctrine barred his dealings. Critically, the tribunal lacked jurisdiction over title disputes, rendering its award and all subsequent registrations void ab initio, and the denial of a fair hearing was fatal. American authorities on third-party reliance on facially valid judgments were held of little value in Kenya's tenure system. The trial court's findings of rights violations under Articles 40, 47 and 50, and of collusion between the appellant and the Registrar, were affirmed. The appeal was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the appellant was an innocent purchaser for value without notice

Holding

No. He was a purchaser for value, but he was served with the judicial review pleadings including a stay order relating to the suit premises, proceeded to subdivide the land in disregard of that order, and failed to conduct thorough historical searches and physical inspection which would have revealed the 1st respondent's subsisting entries and possession.

Reasoning

The Court held that due diligence includes historical searches on the register and physical inspection of the property. A historical search would have revealed the 1st respondent's uncancelled entry No. 4, and physical inspection would have established the 1st respondent's uncontroverted possession. The appellant was served with pleadings and a stay order on 24th March 2006 and conceded service, yet pursued subdivision. The equitable defence required clean hands, which his conduct lacked. The Court adopted the trial judge's factual finding that the appellant knew his title was under interrogation.

p. 7
02

Whether the appellant acquired any proprietary rights over the suit premises

Holding

No. Tsolozi, from whom the appellant derived title, obtained registration through a tribunal that lacked jurisdiction and proceedings conducted without service on the registered proprietor; the resulting title was void ab initio and could confer no good title on the appellant.

Reasoning

The Land Disputes Tribunal had no jurisdiction under section 3(1) of the Land Disputes Tribunal Act over a dispute concerning title to and beneficial interest in land, which only the High Court or a Resident Magistrate's Court could try. A decision reached without jurisdiction is a nullity that needs no order to set aside, per Macfoy. Additionally, the tribunal and magistrate's court proceedings went on without service on the 1st respondent, offending Article 50. American authorities on facially valid judgments were of little value given the different land tenure system.

p. 9
03

Whether the 1st respondent's constitutional rights were violated

Holding

Yes. The 1st respondent's rights to fair hearing and to fair administrative action under Articles 50, 40 and 47 were breached: the tribunal and magistrate's court proceeded without service on him, and the 2nd respondent lifted restrictions without notice or hearing and registered the closed Green Cards as lost in the Kenya Gazette when they were not.

Reasoning

Section 138 of the Registered Land Act required the Registrar to give affected parties an opportunity to be heard before removing a restriction, a procedure totally disregarded. The restrictions were registered on the subdivisions rather than the suit premises, the Green Cards were advertised as lost when in fact they existed, and no fees were paid for the gazette advertisement or new titles, leading to an inference of collusion between the appellant and the 2nd respondent. The Court found the trial judge's conclusions merited on the evidence.

p. 10

Legal principles established

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  • Where a court or tribunal lacks jurisdiction, its acts and orders are void ab initio and every proceeding founded on them is equally a nullity; no reliance by third parties can cure the defect
  • A purchaser for value without notice cannot claim bona fide purchaser status where he was served with pleadings showing that the title he was buying was under challenge, and where he extinguishes the subject matter of the suit by subdivision pending litigation; the doctrine of lis pendens applies
  • A decision reached without hearing an affected party is null and void as it violates the constitutional right to a fair hearing under Article 50
  • On a first appeal the Court of Appeal must revisit, analyse and evaluate the evidence afresh and arrive at its own independent conclusion, while allowing for the trial court's advantage of seeing and hearing witnesses

Court orders

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

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 35(2)
  • Former Constitution of KenyaSection 75
  • Former Constitution of KenyaSection 77
  • Registered Land Act (Cap 300, now repealed)Section 7
  • Registered Land Act (Cap 300, now repealed)Section 28
  • Registered Land Act (Cap 300, now repealed)Section 38(1)
  • Registered Land Act (Cap 300, now repealed)Section 138
  • Registered Land Act (Cap 300, now repealed)Section 143
  • Registered Land Act (Cap 300, now repealed)Section 156
  • Registered Land Act (Cap 300, now repealed)Section 159
  • Land Disputes Tribunal ActSection 3(1)
  • Civil Procedure RulesOrder 53 rule 3(2)

Cases cited (13)

  • Jojan Corp. v Brent, No. 1-98-0849
  • Petta v Host 115 N.E. 2d 881 (III. 1953)
    115 N.E. 2d 881 (III. 1953)
  • Re-Arundhati Roy v Respondent [2002] 3 SCC 343
    [2002] 3 SCC 343
  • Bijay Mahanty v Jadu, Supreme Court of India, Appeal (crl.) 441 of 1993
    Appeal (crl.) 441 of 1993
  • National Director of Public Prosecutions v Mohamed NO & Others [CCT44/02] [2-3] ZACC 4; 2003 SACR 561
    [CCT44/02] [2-3] ZACC 4; 2003 SACR 561
  • Law Society of South Africa & Others v Minister for Transport & Another [CCT 38/10] [2010] ZACC 25
    [CCT 38/10] [2010] ZACC 25
  • Asman Maloba Wepukhulu & Another v Francis Wakwabubi Biketi; KSM Civil Appeal No. 157 of 2001 (UR)
    KSM Civil Appeal No. 157 of 2001 (UR)
  • Seascapes Limited v Development Finance Company of Kenya Ltd [2009] eKLR
    [2009] eKLR
  • Mawji v US International University & Another [1976-80] 1 KLR 229
    [1976-80] 1 KLR 229
  • Jotham Amunavi v The Chairman Sabatia Division Land Disputes Tribunal & Another; Civil Appeal No. 256 of 2002 (KSM)
    Civil Appeal No. 256 of 2002 (KSM)
  • Official Receiver & Provisional Liquidator Nyayo Bus Services Corporation v Firestone E.A [1969] Ltd [1998] eKLR
    [1998] eKLR
  • Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited [1989] KLR 1
    [1989] KLR 1
  • Benjamin Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169
    [1961] 3 All ER 1169
On appeal from
High Court of Kenya at Mombasa
Constitutional Petition No. 50 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Court of Appeal Act in respect of a decision of the High Court sitting as a constitutional court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (22)

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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, "Kawaljeet Singh Rekhi v Peter Wainaina Kamau & 2 others [2016] KECA 89 (KLR)", Case Analysis (2016). Civil Appeal No. 21 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/89/eng@2016-11-25

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