Mount Holding Limited v Mwai Limited, James Mathenge Mwai, Grace Gacheke Mwai, Catherine Wangui Muigai, Municipal Council of Mombasa, GK Meenye & MN Kirima t/a Meenye Kirima Advocatesattorney General, Chief Magistrate’s Court At Mombasa & Registrar of Title Mombasa (Civil Appeal 49 of 2015) [2017] KECA 531 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that land taken through flawed ex parte proceedings can be recovered through judicial review, and a buyer involved in the flawed process cannot claim innocence.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court had jurisdiction to entertain the judicial review application notwithstanding the alternative statutory remedy under section 60 of the RTA
The failure to invoke section 60 of the RTA was not fatal because the case concerned breach of natural justice and illegality in the proceedings, not correction of a title, and the section 60 argument was raised for the first time on appeal
The court reaffirmed the Karume principle that where an alternative statutory remedy exists it should ordinarily be pursued, but held that judicial review remained appropriate here. The respondents' complaint was about the illegal, fraudulent and ex parte process by which they lost the properties, not about correction of a title, which is all section 60 covers. Until the flawed proceedings were quashed, invoking section 60 would have been futile. The alternative-remedy argument was also new on appeal, and new points of law are generally precluded.
Whether the High Court lacked jurisdiction to entertain judicial review after the Constitution transferred land disputes to the Environment and Land Court under Article 162
The High Court could not be faulted because under Section 22 of the Sixth Schedule pending judicial proceedings continue before the same or a corresponding court, and no party sought transfer
The judicial review proceedings were instituted in 2008, before the 2010 Constitution. Section 22 of the Sixth Schedule allowed pending proceedings to continue before the same court, a corresponding court, or as directed. The parties chose to remain in the High Court, the appellant never sought transfer, and it raised the jurisdictional question for the first time on appeal. The transitional clause therefore preserved the High Court's jurisdiction.
Whether orders of certiorari could issue against the appellant's provisional title, it being a private company
The orders were directed at the 7th and 8th respondents and were aimed at quashing proceedings leading to the issuance of the provisional titles, not at revoking a registered document
The court held that the judicial review proceedings were directed at the Chief Magistrate's Court and the Registrar of Titles, with the appellant merely a nominal party. None of the orders sought were directed at the appellant and none sought revocation of title; they sought to quash the proceedings leading to issuance of the provisional titles. The appellant, being privy to the disavowal of the 5th respondent and to the flawed ex parte process, could not benefit from it.
Whether the appellant was an innocent purchaser for value without notice
The appellant could not claim innocent purchaser status given its collusion with the 5th respondent and knowledge of the flawed process
The court found the auction to be a paper auction and noted the appellant was privy to the newspaper notices disavowing the 5th respondent as counsel for the 4th respondent, yet still instructed that firm to obtain vesting orders, provisional certificates and evictions. The appellant's conduct and that of the 5th, 7th and 8th respondents was inexcusable, and there was no evidence the appellant paid the purchase price.
Legal principles established
#- Where a specific statutory procedure or remedy exists, it should be pursued and exhausted before resorting to court, but judicial review remains available as a remedy of last resort in exceptional circumstances, and the presence of an alternative remedy does not in itself bar judicial review
- A party who departs from a statutory remedy in favour of judicial review must demonstrate cogent reasons for doing so; judicial review is a remedy of last resort
- A litigant is generally precluded from taking a completely new point of law for the first time on appeal
- Pleadings are binding not only on the parties but on the court as well
Court orders
#- 1.The appeal is dismissed
- 2.Costs awarded to the 3rd and 4th respondents
- On appeal from
- High Court of Kenya at Mombasa
- H.C. JR. Misc. C. No. 11 of 2008
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (Court of Appeal Act); appeal against a High Court ruling in judicial review proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mount Holding Limited v Mwai Limited, James Mathenge Mwai, Grace Gacheke Mwai, Catherine Wangui Muigai, Municipal Council of Mombasa, GK Meenye & MN Kirima t/a Meenye Kirima Advocatesattorney General, Chief Magistrate’s Court At Mombasa & Registrar of Title Mombasa (Civil Appeal 49 of 2015) [2017] KECA 531 (KLR)", Case Analysis (2017). Civil Appeal No. 49 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/531/eng@2017-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.