Rose Njoki King’au & Micugu Wagathara v Shaba Trustees Limited & City Council of Nairobi (Civil Appeal 230 of 2016) (Civ) [2018] KECA 216 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a registered land title beats unregistered allotment letters unless you prove fraud against the title holder.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judge exercised her discretion judiciously when she struck out the appellants' amended plaint as against the 1st respondent and entered summary judgment against the appellants in terms of the 1st respondent's defence and counterclaim
- 2.Whether the issue of ownership of the suit property was properly addressed, including the indefeasibility of the 1st respondent's title under section 23(1) of the Registration of Titles Act and the sufficiency of the fraud pleaded against the 1st respondent
- 3.Whether the Judge properly appreciated the law on striking out of pleadings and summary judgment, and whether triable issues were disclosed
- 4.Whether the Judge erred in failing to pronounce herself on the appellants' entitlement to interlocutory judgment against the 2nd respondent
- 5.Whether the 1st respondent's counterclaim, lacking a verifying affidavit under Order VII rule 2(2), was defective and could not sustain the application
Key legal issues
#Indefeasibility of the 1st respondent's registered title
The grant issued to the 1st respondent on 30 March 2001 was absolute and indefeasible under section 23(1) of the RTA and could only be defeated by proven fraud to which the title holder was a party; no such fraud was pleaded or proved
Both parties relied on section 23(1) of the RTA and the Dr. Joseph Arap Ng'ok holding. The appellants' paragraph 9(e) pleaded fraud against the 2nd respondent only, promising particulars against the 1st respondent 'at an opportune time', none of which was ever supplied. Without proof of fraud to which the registered owner was a party, the registered grant trumped the appellants' unregistered allotment letters.
Validity of unregistered allotment letters
The appellants' allotment letters conferred no enforceable proprietorship because they were not registered under section 32 of the RTA and the 2nd respondent held no title capable of supporting an allocation
The court agreed with the trial Judge that no evidence showed the allotment letters were registered as required by section 32 of the RTA, nor that the City Council held title from which authority to allocate could derive. The instruments of proprietorship relied on by the appellants therefore stood vitiated for want of registration, and their claim to proprietorship could not prevail over the registered grant.
Striking out and summary judgment principles
Striking out and summary judgment are procedures for the clearest of cases; a defendant showing a bona fide triable issue must be allowed to defend, but the appellants demonstrated no such issue
The court restated the D.T. Dobie principles on striking out and the summary judgment principles in ICDC v Deber Enterprises, Kenindia Assurance and Dhanjal Investments. Applying them, the appellants failed to show a superior title, a title in the 2nd respondent superior to the Commissioner of Lands, a plausible defence to the counterclaim, or proceedings against the Commissioner of Lands; hence no triable issue existed and the Judge's discretion was properly exercised.
Entitlement to judgment against the 2nd respondent
The trial Judge was entitled to confine herself to the 1st respondent's application and make no pronouncement on the claim against the 2nd respondent, which was never raised before her
The application before the Judge concerned only the striking out of the plaint against the 1st respondent and summary judgment on its counterclaim. The 1st respondent's application did not affect the appellants' right to pursue their claim against the 2nd respondent, and the appellants never invited the Judge, formally or informally, to pronounce on that claim concurrently. A Judge may decline to rule on matters not raised by the parties.
Defective counterclaim lacking verifying affidavit
The court declined to entertain the complaint that the counterclaim was defective for want of a verifying affidavit because it was raised for the first time on appeal contrary to rule 104 of the Court of Appeal Rules
The appellants correctly observed that the counterclaim lacked a verifying affidavit under Order VII rule 2(2). However, no complaint on that issue appeared in their replying affidavit or submissions before the trial Judge, nor in the memorandum of appeal. Rule 104(a) and (c) bars arguing grounds not specified in the memorandum of appeal without leave, so the court could not consider it.
Appellate interference with discretion
The appeal is a first appeal against an exercise of judicial discretion, guided by Mbogo v Shah; no misdirection or clear error was demonstrated
Citing Mbogo v Shah, the court held it should not interfere with the Judge's discretion unless she misdirected herself or was manifestly clearly wrong resulting in misjustice. Having reviewed the record, the court found no misapprehension of facts or misapplication of legal principles; the Judge's findings on ownership, striking out, and summary judgment were correct.
Legal principles established
#- A title registered under section 23(1) of the Registration of Titles Act is absolute and indefeasible and can only be challenged on grounds of fraud or misrepresentation to which the registered owner is proved to be a party
- An allotment letter that is not registered in accordance with section 32 of the Registration of Titles Act confers no proprietorship capable of resisting a registered grant
- Fraud must be specifically pleaded with particulars; particulars promised 'to be supplied at an opportune time' and never supplied amount to no plea of fraud
- A Court of Appeal will not interfere with a trial Judge's exercise of discretion unless the Judge misdirected himself or was clearly wrong in the exercise of the discretion resulting in injustice
- A party cannot, without leave, argue on appeal a ground not raised before the trial court nor specified in the memorandum of appeal (rule 104 of the Court of Appeal Rules)
- A trial Judge is entitled to refrain from pronouncing on matters not specifically raised before her by the parties
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Civil Suit No. 986 of 2006
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (appeal from the High Court); the judgment does not cite a specific constitutional or statutory appellate provision
Relief refused
#Appellants' claim of proprietorship of the suit property based on allotment letters
The allotment letters were not registered under section 32 of the RTA and no evidence showed the 2nd respondent held title capable of supporting allocation
Challenge to the 1st respondent's title on grounds of fraud
No particulars of fraud were pleaded against the 1st respondent; those attributable to it were to be supplied at an 'opportune time' and never were
Leave to defend / trial on the claim
Appellants did not demonstrate a superior title, a plausible defence to the counterclaim, or any challenge to the Commissioner of Lands
Raising the defect of the counterclaim (want of verifying affidavit) on appeal
The complaint was not raised before the trial Judge nor specified in the memorandum of appeal, and rule 104 of the Court of Appeal Rules bars raising new grounds without leave
Costs
The appeal was dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the above reasoning is that, we find no merit in this appeal. It is accordingly dismissed with costs to the respondents.
in the absence of any proven fraud attributable to the 1st respondent in the acquisition of the suit property, rendered the grant issued to it on the 30th day of March 2001, indefeasible in law
the instruments of proprietorship relied upon by the appellants to resist the 1st respondent's claim of proprietorship of the suit property stood vitiated for want of registration in terms of the provisions of section 32 of the RTA
a Court of Appeal should not interfere with the exercise of the discretion of a Judge unless it is satisfied that, he misdirected himself in some matter and as result arrived at a wrong decision or unless, it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice.
The Judge was therefore entitled in the circumstances to refrain from making any pronouncement on matters that had not been specifically raised before her by the parties.
The law is that, a party is bound by his/her pleadings. Our hands are therefore tied in terms of the above guiding rule. We cannot consider it now.
this procedure (of striking out) should not be resorted to save in the clearest of cases
Issues in the judgment
#The judgment states the appellants sued on 18th September 2008, then immediately says 'as subsequently amended on the 25th day of September, 2006' - the amendment date predates the filing date, an internal chronological inconsistency
The judgment dates the impugned ruling as 29th April 2010 in the opening paragraph but later states the ruling was delivered on 29th April 2009
The citation of Dr. Joseph Arap Ng'ok case appears with inconsistent party names/spellings ('Justice Moijo ole Keiwua', 'Moilo ole Keiwua', 'omoijo ole Keiwa') and varying numbers of co-defendants
A passage on the appellants' explanation for failing to file a reply appears garbled and incomplete in the text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Njoki King’au & Micugu Wagathara v Shaba Trustees Limited & City Council of Nairobi (Civil Appeal 230 of 2016) (Civ) [2018] KECA 216 (KLR)", Case Analysis (2018). Civil Appeal No. 230 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/216/eng@2018-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.