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Court of AppealDismissedCivil Appeal No. 203 of 2012· [2016] KECA 589 (KLR)

Charles Mugane Njonjo & another v Gucokaniria Kihato Traders And Farmers Company Limited & another [2016] KECA 589 (KLR)

Court of Appeal
6 May 2016
Martha Karambu KoomeM. K. KoomeHOH. M. OkwenguJOJ. Otieno-Odek
3,505 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that land disputes involving fraud allegations must go to full trial and cannot be thrown out early, even against a registered title.

What this practically means

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Executive summary

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The appellants, Charles Mugane Njonjo and Solio Ranch Limited, appealed against a High Court ruling by Mbogholi Msagah, J dated 10th December 2009, dismissing their application to strike out the plaint filed by Gucokaniria Kihato Traders and Farmers Company Limited in a dispute over LR No. 11571 (Solio Ranch). The 1st respondent claimed the property was allocated to its members by the late President Kenyatta in 1973, that its allotment documents were seized by police on the instructions of the 1st appellant when he was Attorney General, and that the 2nd appellant's title was fraudulently procured. The 2nd appellant asserted indefeasible title under Section 23 of the Registration of Titles Act. The appellants argued that the plaint disclosed no reasonable cause of action, was frivolous and vexatious, and that the 2nd appellant's title was indefeasible and no fraud was pleaded against it. The respondents maintained that triable issues existed as to ownership, the validity of the allotment letter, and the allegation of fraud, and that the trial judge's discretion should not be disturbed. The Court of Appeal held that striking out a suit is a discretion to be exercised judiciously; that denial of the plaint's allegations by the defences created a joinder of triable issues; that fraud, once pleaded, must be determined on evidence at trial, not summarily; and that whether Section 23 of the RTA protects the 2nd appellant's title against fraud allegations is itself a triable issue. The right to be heard is fundamental and must be jealously guarded. The Court affirmed the decision below and dismissed the appeal with costs.

Key legal issues

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01

Exercise of discretion to strike out a plaint

Holding

The trial judge did not err in declining to strike out the plaint; the discretion was judiciously exercised because triable issues were disclosed.

Reasoning

The Court re-evaluated the record and found that the plaint and defences disclosed disputed and contested facts. Striking out the plaint would have summarily determined the dispute without a hearing on the merits. The right to be heard, being fundamental, outweighed the appellants' summary procedure application, which is akin to summary judgment.

p. 6
02

Indefeasibility of title under Section 23 of the Registration of Titles Act

Holding

Whether Section 23 of the RTA applies to the 2nd appellant's Certificate of Title and whether it is impeachable for fraud is itself a triable issue requiring trial and evidence.

Reasoning

The Court held that the contestation as to fraud and abuse of office by the 1st appellant is intertwined with whether Section 23 of the RTA protects the 2nd appellant's title. If the allegations of fraud were proved, they would taint the Certificate of Title. Following Sunderji v Clyde House Company Limited, issues requiring reference to applicable law must be tried with full argument and not dealt with summarily.

p. 5
03

Disclosure of triable issues by the pleadings

Holding

Joinder of triable issues occurred because the appellants' defences denied the allegations of fact in the plaint, including the claim to ownership and the allegation of fraud.

Reasoning

The Court applied the principle that joinder of issue occurs when a defendant challenges or denies some or all of the plaintiff's allegations of fact. The appellants denied in entirety the allegations of fact, claimed the property was unalienated government land, and the 2nd appellant counterclaimed for possession and injunctions. These diverse contestations constitute triable issues subject to trial.

p. 5

Legal principles established

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  • A decision to strike out a suit or pleading is a discretion of the trial court which must be exercised judiciously; where triable issues are disclosed, summary striking out is unwarranted.
  • When a defendant denies allegations of fact in a plaint, a joinder of triable issues arises which can only be resolved by trial.
  • Allegations of fraud should not be determined summarily but upon consideration of evidence at trial.
  • The right to be heard is a fundamental right that must be jealously guarded; a dispute should not be summarily determined without a hearing on the merits.

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Registration of Titles ActSection 23
  • Civil Procedure Act and RulesOrder 2 Rule 15(1)
  • Registration of Titles ActCap 281

Cases cited (16)

  • Mary Kalolia Mutisya v Joel Ngui Mweu
    (2005) eKLR
  • Muchendu v Waita
    (2003) KLR 419
  • Rosky Traders Limited v Gertrude Chao Waita & 2 others
    (2013) eKLR
  • Wreck Motors v Commissioner of Lands
    Civil Appeal No. 71 of 1997
  • Pan African Bank Limited v Gulmareba Limited & 2 others
    (2006) eKLR
  • Termco Tank (K) Limited v Nyoro Construction Company Limited
    (2004) eKLR
  • Kenya Commercial Bank Limited v Suntra Investments Bank Limited
    (2015) eKLR
  • Mbogo & another v Shah
    (1968) EA 93
  • Dyson v Attorney General
    (1911) KB 410
  • Lalji t/a Vakkep Building Contractors v Casousel Limited
    (1989) KLR 386
  • Commercial Advertising and General Agencies Ltd. v Qureishi
    (1985) KLR 458
  • B. Gupta v Continental Builders Limited
    Civil Appeal No. 33 of 1977
  • Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission and 2 Others
    C.A. No. 18 of 2013, Nyeri
  • Sunderji v Clyde House Company Limited
    (1984) KLR 499
  • Mbuthia v Jimba Credit Finance Corporation & Another
    (1988) KLR 1
  • Doge v Kenya Canners Limited
    1985 KLR 942
On appeal from
High Court of Kenya at Nairobi
H.C.C. No. 1251 of 2002
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the High Court (Constitution of Kenya, Article 164; Court of Appeal Act) - the judgment does not state a specific provision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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 Mugane Njonjo & another v Gucokaniria Kihato Traders And Farmers Company Limited & another [2016] KECA 589 (KLR)", Case Analysis (2016). Civil Appeal No. 203 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/589/eng@2016-05-06

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