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Court of AppealDismissedCivil Appeal No. 90 of 2015· [2017] KECA 727 (KLR)

Chrispus Chengo Masha & 7 others v Daniel Ricci [2017] KECA 727 (KLR)

Court of Appeal of Kenya
17 February 2017
3,285 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 dismissed landowners' appeal, holding they proved no valid title over land a company had registered years earlier.

What this practically means

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Executive summary

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The Court of Appeal at Malindi (Koome, Ouko and M'inoti, JJ.A) dismissed an appeal by eight beneficiaries of the Ngomeni Squatter Settlement Scheme against the judgment of Meoli, J. declining a permanent injunction restraining Daniel Ricci from constructing a perimeter wall on land in Kilifi County. The respondent was a director of Kenland Enterprises Limited, which had purchased and been registered as owner of the suit property in 1992 under the repealed Registration of Titles Act, while the appellants obtained titles under the repealed Registered Land Act only in 2007, hurriedly prepared and shortly thereafter restricted by the Land Registrar for erroneous issuance. Two site visits by the trial judges established that the appellants were not in occupation or cultivation. The Court held that the appellants bore the burden of proving, on a balance of probabilities, valid registration and wrongful trespass, which they failed to discharge; that the trial judge could not determine ownership or revocation issues not raised by the pleadings; that the claim lay against the Company rather than the respondent personally, a company being distinct from its directors; and that the appellants' titles were subject to express restrictions under section 28(a) of the Registered Land Act while the Company's prior title was protected by section 23 of the Registration of Titles Act. The Court declined to nullify the judgment for an eight-month delivery delay, though it did not excuse the delay and noted the constitutional demand that justice not be delayed. The Court disagreed that the earlier Zimba Bawa suit rendered the claim res judicata, but treated its pleadings as corroborating the identity of the parcels. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the appellants discharged the burden of proof for a permanent injunction

Holding

No. The Company's registration under the Registration of Titles Act was first in time (1992) while the appellants' registration (2007) was erroneous, hurried and subject to restrictions placed by the Land Registrar.

Reasoning

The court held that the appellants bore the burden of proving on a balance of probabilities valid registration and wrongful trespass. The Company's title predated theirs by fifteen years; the settlement scheme had erroneously incorporated private land already registered under the Registration of Titles Act; and the Land Registrar had restricted the appellants' titles for erroneous issuance. Evidence of haste in preparing the titles for political purposes further undermined their validity. The claim of occupation was discredited by two site visits revealing no settlement or cultivation.

p. 5
02

Whether the court could be compelled to determine ownership and revoke titles not pleaded

Holding

No. The trial judge determines only issues raised by the pleadings and the relief sought; a party wishing to litigate the genuineness of titles must amend its pleadings to seek appropriate declarations.

Reasoning

The appellants sought only a permanent injunction. The judge was required only to determine whether the appellants had proprietary rights violated or likely to be violated by the respondent. Allegations about true ownership and revocation of titles raised for the first time on appeal could not be entertained, on the authority of Gandy v Caspar Air Charters Ltd and Baber Alibhai Mwaji v Sultan Hashim Lalji.

p. 4
03

Whether the suit was maintainable against the respondent personally rather than the Company

Holding

No. The Company, not the respondent, was the registered owner undertaking the wall's construction; a company is a distinct legal personality from its directors, so no wrongdoing by the respondent was established.

Reasoning

Although the respondent was sued as defendant, the evidence showed he was merely a director of Kenland Enterprises Limited, the registered proprietor responsible for the wall. The court applied the separate legal personality principle, citing Macaula v Northlife Assurance Co. Ltd and A. L. Underwood Ltd v Bank of Liverpool & Martins, and held the appellants' cause of action lay against the Company.

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Whether the eight-month delay in delivering the High Court judgment nullified it

Holding

No. The delay was not excused and contravened the constitutional demand that justice not be delayed, but nullification was not the remedy; the judgment did not turn purely on witness demeanour.

Reasoning

The record showed the judge was transferred from Malindi to Naivasha and dated and delivered the judgment about eight months after indicating it would be on notice. The court noted the Constitution demands that justice shall not be delayed and that an explanation from the judge would have sufficed, but held nullification inappropriate because the substantive evidence independently supported the outcome.

p. 5
05

Whether the striking out of Mombasa HCCC No. 646 of 1992 rendered the appellants' suit res judicata

Holding

No, the court disagreed with the judge and the respondent on res judicata, but the pleadings in that earlier suit corroborated that the suit property claimed by the appellants is the same property registered in the Company's name.

Reasoning

In the 1992 suit the 1st appellant and others had claimed the same Plot No. 624 against Ali Islam Said. Although the court declined to find res judicata because the earlier suit was struck out in unclear circumstances, it treated the earlier pleadings as evidence that the parcels overlapped, undermining the appellants' assertion that they occupied different land.

p. 4

Legal principles established

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  • A trial court cannot determine issues that were not raised in the pleadings; a party seeking revocation of title or a declaration of ownership must plead it.
  • A company is a distinct legal personality from its directors; a suit against a director personally cannot yield relief against the company's conduct on the company's land.
  • A party seeking a permanent injunction must prove, on a balance of probabilities, proprietary rights over the property and wrongful interference by the defendant.
  • Titles under section 28 of the repealed Registered Land Act are subject to encumbrances, conditions and restrictions shown in the register, and are not indefeasible against express restrictions; the prior registered title under the Registration of Titles Act is protected by section 23 of that Act.
  • Properties already registered under the Registration of Titles Act cannot be included in an adjudication area under the Land Adjudication Act.

Court orders

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

Authorities

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Legislation

  • Registered Land Act (repealed)section 28
  • Registered Land Act (repealed)section 28(a)
  • Registration of Titles Act (repealed)section 23
  • Land Adjudication Act
  • Constitution of Kenyademand that justice shall not be delayed

Cases cited (6)

  • Gandy v. Caspar Air Charters Ltd
    [1956] 23 EACA 139
  • Baber Alibhai Mwaji v. Sultan Hashim Lalji & Another
    CA No 296 of 2001
  • Delphis Bank Ltd v. Channan Singh Chatthe & 5 Others
    CA No 179 of 2008
  • Macaula v Northlife Assurance Co. Ltd & Others
    [1952] 94 LJ PC 155
  • A. L. Underwood Ltd v Bank of Liverpool & Martins
    [1924] All ER 230
  • Zimba Bawa & Others v Ali Islam Said & Another
    Mombasa HCCC No 646 of 1992
On appeal from
High Court of Kenya at Malindi
HCC No. 87 of 2009
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal jurisdiction over appeals from the High Court in civil matters (Constitution of Kenya, Article 164)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chrispus Chengo Masha & 7 others v Daniel Ricci [2017] KECA 727 (KLR)", Case Analysis (2017). Civil Appeal No. 90 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/727/eng@2017-02-17

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