Musk Deer Limited v Benjamin K. Kipkurui & another [2018] KECA 400 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a property sale in flawed court proceedings is void and transfers no title, even to a buyer who claims innocence.
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 1st respondent was entitled to the remedies sought by way of a constitutional petition when he had invoked the appellate jurisdiction by appealing against the orders of the subordinate court
- 2.Whether the High Court had jurisdiction to determine the petition, including rights appertaining to title to land, rather than the Environment and Land Court
- 3.Whether the court erred by not finding the appellant was an innocent purchaser for value of the suit premises without notice
Key legal issues
#Whether the constitutional petition was barred by the existence of an appeal, or belonged in the ELC
Neither. The petition raised mixed issues of fair hearing, fair administrative action, abuse of process and arbitrary deprivation of property, within the High Court's jurisdiction under Articles 22(1) and 23(1); filing before the ELC would have been a procedural technicality.
Article 22(1) gives every person the right to institute proceedings claiming a Bill of Rights violation and Article 23(1) confers jurisdiction on the High Court. The core complaint was breach of the right to a hearing and an ex parte null sale by a court without jurisdiction. The pending appeal (Civil Appeal No. 178 of 2007) raised different issues (the preliminary objection and functus officio) so there was no duplication or abuse of process.
Whether the 1st respondent's rights to a fair hearing, fair administrative action and protection of property were violated
Yes. He was condemned unheard: summonses were served on a post office box never held by him, no statutory demand notice under the Rating Act was issued, and the advocate who conducted the proceedings admitted the judgment could not lawfully stand. The ex parte proceedings and resultant sale were a nullity.
The audi alteram partem rule was breached, offending Articles 10, 40, 47 and 50. Service was on the wrong address, confirmed by Posta Kenya, and uncontroverted. The 2nd respondent disowned the sale, confirmed no demand notice was issued as required by Section 17 of the Rating Act, and that the instructing party had no contract to collect rates. Following Macfoy v United Africa Company, a void act is incurably bad and needs no setting aside.
Whether the appellant was an innocent purchaser for value without notice
No. The appellant varied the conditions of sale without court reference, obtained a vesting order while misrepresenting that the balance had been paid, obtained a provisional title without compliance with Section 71 of the Registration of Titles Act, and did no due diligence. In any event, a void sale conveys no title.
The balance of the purchase price was paid on 25th April 2007, after the property had been vested on 19th April 2007 on the misrepresentation that it had been paid. A provisional title was procured without the gazette notice procedure for lost titles, yet the title was with the 1st respondent. Even assuming innocence, the decree being a nullity, nothing valid passed to the purchaser.
Legal principles established
#- A decree or order issued in ex parte proceedings conducted without service and without jurisdiction is a nullity, and every consequential step founded on it, including a sale and vesting of property, is equally void and conveys no title even to a purchaser who might otherwise claim innocence.
- A person who alleges violation of fundamental rights is not barred from pursuing a constitutional petition merely because an alternative appellate remedy exists, where the complaints concern breaches of fair hearing, fair administrative action and arbitrary deprivation of property.
- Compliance with the statutory demand notice requirements of the Rating Act is mandatory; absence of such notice and improper service deprive the subordinate court of jurisdiction over the rate defaulter's property.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear their own costs both in this appeal and in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HC Constitutional Petition No. 9 of 2014
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction; the petition below was anchored on Articles 22(1), 23(1) and 165 of the Constitution
Relief refused
#Appellant's prayer to be found an innocent purchaser for value without notice and to have the appeal allowed
The decree and sale being a nullity, no title could vest in the appellant; the appellant also failed to comply with conditions of sale and conducted no due diligence
Costs
We direct each party to bear their own costs.
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.
Therefore this appeal lacks merit and it is hereby dismissed.
In the event, we are reluctant to condemn the appellant to bear the costs both for this appeal and in the High Court. We direct each party to bear their own costs.
In Any event, even if the appellant was an innocent purchaser, which we think it was not, the decree having been a nullity all consequential steps that were taken pursuant thereto were also a nullity in law.
In our considered view we see nothing in the Constitution, statute or procedure that barred the 1 st respondent from seeking redress against the detailed violations of his constitutional rights.
If an act is void, then it is in law a nullity. It is not only bad, but it is incurably bad.
Issues in the judgment
#The judgment inconsistently renders the 1st respondent's name in the subordinate court case as 'Benjamin Kipkurui' and 'Benjamin Kipkulei'
The post office box number in the service is inconsistently stated as 84209 and 84029 in different passages
The parties are numbered inconsistently: the opening paragraph describes the Municipal Council of Mombasa as the '3rd respondent' while the cause title lists only two respondents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musk Deer Limited v Benjamin K. Kipkurui & another [2018] KECA 400 (KLR)", Case Analysis (2018). Civil Appeal No. 54 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/400/eng@2018-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.