Toro & Team Limited & another v District Land Registrar Kiambu & 2 others [2019] KECA 812 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that land bought from someone whose authority to sell had been revoked brings no title protection, even for a buyer who claims innocence.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 application for judicial review was incurably defective
- 2.Whether the judicial review orders were appropriate in the circumstances
- 3.Whether the 1st appellant was an innocent purchaser for value without notice and whether the title it acquired should not have been cancelled
Key legal issues
#Whether the judicial review application was incurably defective because the statement of facts sought leave rather than substantive orders
The defect, if any, was curable under Article 159(2)(d); the Court endorsed the balance struck in Raila Odinga v IEBC and upheld the learned Judge's exercise of the constitutional discretion
The appellants argued the statement of facts was a crucial document binding the applicant, making the mismatch between the leave sought and the substantive orders incurable. The Court, guided by the Supreme Court's exposition in Raila Odinga v IEBC, held that Article 159(2)(d) requires courts not to pay undue attention to procedural requirements at the expense of substantive justice, while not ousting compliance with procedural imperatives. It found no error in the learned Judge's conclusion that the orders sought complied with the leave granted.
Whether certiorari and mandamus were appropriate remedies against the Land Registrar's actions
Yes; the Registrar acted in excess of his powers by registering a defective transfer and issuing title, so his actions were amenable to judicial review
Section 108 of the Registered Land Act (repealed) required a true statement of consideration and prescribed forms; the transfer lacked the consideration, the transferee's seal, attestation by a director and secretary, photographs and a date. Relying on Republic v KNEC ex parte Gathenji and Anisminic, the Court affirmed that certiorari and prohibition are tools to supervise public bodies whose decisions are ultra vires, irrational or illegal, and that a registrar acting in excess of power renders his decision a nullity reviewable by the court.
Whether the 1st appellant was an innocent purchaser for value without notice whose title was protected
No; the vendor's grant had been revoked before the sale, so he had no capacity to transfer, and the purchaser's title was tainted by the underlying illegality
The 2nd appellant derived title by transmission under a grant revoked by Dulu, J in 2006, three years before the 2009 sale. Upon revocation he ceased to have any proprietary interest and lacked capacity to transfer. Citing Re Estate of Christopher Jude Adela as approved in Musa Nyaribari Gekone, the Court held that section 93 of the Law of Succession framework does not grant carte blanche immunity; a transfer by a personal representative shown to be fraudulent or irregular can be invalidated, so the purchaser acquired no indefeasible title.
Whether the learned Judge erred in refusing to review his first ruling on the basis that the 2nd appellant's replying affidavit was overlooked
No; the Judge considered the affidavit in his second ruling and the discretion was exercised judicially
Review is a discretionary power under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Following Mbogo v Shah, an appellate court interferes only where the judge misdirected himself, acted on wrong matters, or failed to consider relevant matters and so reached a wrong conclusion. The Court found the Judge had in fact considered the replying affidavit in the ruling of 7th December 2010 and found no error justifying interference.
Legal principles established
#- Where a land registrar acts in excess of his power in effecting a registration or transfer and issuing a title deed contrary to the law, his actions are amenable to judicial review.
- Upon revocation of letters of administration, a personal representative ceases to have any proprietary interest in estate property and cannot pass good title to a purchaser.
- Article 159(2)(d) does not oust the obligation of litigants to comply with procedural imperatives, though courts should not pay undue attention to procedure at the expense of substantive justice.
- An appellate court will not interfere with a judge's exercise of discretion on review unless it is shown the judge misdirected himself, acted on wrong matters or failed to consider relevant matters and thereby reached a wrong conclusion.
Court orders
#- 1.Appeal dismissed with costs 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
- J.R E.L.C Misc. Application No. 8 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and applicable appellate statute; the judgment does not cite a specific jurisdictional provision
Relief refused
#Setting aside the rulings of 30th November 2010 and 7th December 2010 and allowing the appeal
The Court found the judicial review orders appropriate and the appeal without merit
Declaration that the 1st appellant was an innocent purchaser for value whose title should stand
The vendor's grant had been revoked, so he had no capacity to transfer the property
Costs
Appeal 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.
We find and hold that the judicial review orders issued by the learned Judge were appropriate in the circumstances of this case. The result of the foregoing is that this appeal has no merit. It is dismissed with costs to the respondents.
where a land registrar acts in excess of his power in effecting a registration or a transfer and issuing a title deed contrary to the law, his actions are amenable to review by this Court
Upon revocation of the Letters of Administration, the 2nd appellant ceased to have any propriety interest in the suit property and therefore had no capacity to transfer the same.
It shall be a very weak or unfair system of law if it gives a Carte blanche of absolute immunity against challenges to transfer of immovable properties of estate by a personal representative
Article 159(2) (d) of the Constitution simply means that a court of law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the court.
Issues in the judgment
#The judgment states the caution was lodged on 5th May, 2000, but later refers to the caution removed at the instance of the 2nd appellant on 28th September, 2009 as caution no. 9 and to a Government of Kenya caution of 28th May, 1982 as entry no. 4, whereas the second ruling describes the Government caution as registered on 23rd May, 1982 - an internal inconsistency in dates and caution numbering
The Court states Dulu, J's revocation ruling was dated 7th June, 2006 in one passage but the judicial review application pleaded revocation on 7th February, 2006
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Toro & Team Limited & another v District Land Registrar Kiambu & 2 others [2019] KECA 812 (KLR)", Case Analysis (2019). Civil Appeal No. 188 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/812/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.