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Court of AppealDismissedCivil Appeal No 167 of 2018· [2019] KECA 345 (KLR)

Francis Munyao Mulinge &2 others v Gladdys Mponda & 5 others [2019] KECA 345 (KLR)

Court of Appeal
26 September 2019
3,891 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 confirmed that land already allocated and occupied cannot be reallocated, and titles issued on such illegal allocations are void.

What this practically means

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Executive summary

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This was the appellants' first appeal against the decision of Omollo, J. of the Environment and Land Court at Mombasa, which had dismissed their suit seeking nullification of the 1st respondent's title to Kilifi/Mtwapa/536, a mandatory injunction and vacant possession. The appellants, a husband, wife and brother, claimed to have been allotted sixteen plots in 1996 by the Commissioner of Lands as unallocated government land, and alleged that the 1st respondent's title was procured by fraud, collusion or forgery. The 1st respondent's late father had been allotted Plot No. 242 of the Mtwapa Settlement Scheme through the Settlement Fund Trustees in the 1970s; he repaid the SFT loan, obtained a certificate of outright purchase and discharge of charge, and title issued in 1992, the plot being renumbered as the suit property. The surveyor called by the appellants himself conceded that Plot No. 242 and the suit property occupied the same spot on the ground. The Court of Appeal re-evaluated the entire evidence as required on a first appeal and agreed with the trial court: the land was already allocated and was not available for allocation in 1996; the Commissioner of Lands had no power to alienate it, so the letters of allotment and subsequent titles to the appellants were nullities, void and not merely voidable, incapable of being saved by legitimate expectation, estoppel or waiver. The family's possession since 1977 conferred equitable rights overriding those of a subsequent allottee. The claim for compensation failed because it was not pleaded or canvassed below. The appeal was dismissed with costs to the respondents and the trial judgment was confirmed and upheld.

Key legal issues

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01

Whether land already allocated under a settlement scheme remains available for subsequent allocation by the Commissioner of Lands

Holding

The suit property was not available for allocation in 1996; the letters of allotment and subsequent titles issued to the appellants were nullities

Reasoning

The land had been allocated to the 1st respondent's father through the Settlement Fund Trustees in the 1970s; he repaid the loan, obtained a certificate of outright purchase and a discharge of charge, and a freehold title issued in 1992. The Commissioner of Lands therefore had no power to alienate the land as unallocated. A family in possession since 1977 held equitable rights overriding those of a later allottee, and the purported allocation was done outside the Commissioner's mandate and amounted to nothing.

p. 5
02

Whether a first appellate court may re-evaluate the entire evidence

Holding

A first appeal court has the primary duty of subjecting the entire evidence to fresh re-evaluation while making allowance for not having seen or heard the witnesses

Reasoning

Applying Kenya Ports Authority v Kuston (Kenya) Ltd, the Court affirmed its duty on a first appeal to reconsider the evidence, evaluate it and draw its own conclusions, while bearing in mind that it has neither seen nor heard the witnesses and making due allowance in that respect. Having done so, the Court concurred with the trial court's findings and decision.

p. 4
03

Whether the appellants were entitled to compensation for the double allocation

Holding

No; the issue was not pleaded or canvassed before the High Court and a party is bound by its own pleadings

Reasoning

The Court held the 1st respondent should not be penalised because someone at the Ministry of Lands allocated unavailable land to the appellants. The question of who should bear the brunt of the mistake leading to double allocation was not canvassed before the High Court, and the appellants never sought compensation or refund of their purchase price. It is trite law that a party is bound by their own pleadings, so the claim for compensation could not be entertained on appeal.

p. 5

Legal principles established

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  • The Commissioner of Lands has no power to allocate as unallocated land a parcel already allocated and paid for; rights of a person in possession or occupation of land are equitable rights binding on the land and override those of a subsequent allottee
  • An action taken by the Commissioner of Lands without legal authority is a nullity - void, not merely voidable - and cannot be saved by legitimate expectation, estoppel or waiver

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The judgment of the trial court dated 24th October, 2018 is confirmed and upheld with costs to the respondents

Authorities

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Legislation

  • Government Lands Act (repealed)Section 2
  • Government Lands Act (repealed)Section 3

Cases cited (5)

  • Nelson Kazungu Chai & 9 Others vs. Pwani University College
    Civil Appeal No 78 of 2016
  • Kenya Ports Authority vs. Kuston (Kenya) Ltd
    (2009) 2 EA 212
  • Republic vs. Kenya Revenue Authority, ex parte Aberdare Freight Services Limited
    [2004] 2 eKLR 530
  • Mwangi & Another vs. Mwangi
    (1986) KLR 328
  • Said Bin Seif vs. Shariff Mohammed Shatry
    (1940) 19 (1) KLR 9
On appeal from
Environment and Land Court at Mombasa
E & LC Case No 120 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment expressly exercises the first-appeal duty of fresh re-evaluation of the entire evidence)

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, "Francis Munyao Mulinge &2 others v Gladdys Mponda & 5 others [2019] KECA 345 (KLR)", Case Analysis (2019). Civil Appeal No 167 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/345/eng@2019-09-26

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