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Court of AppealPartially AllowedCivil Appeal 403 of 2017· [2022] KECA 468 (KLR)

Darelle Limited v ASL Limited & 2 others

Court of Appeal
18 March 2022
WKW KaranjaFSF SichaAMA Mbogholi-Msagha
5,898 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a buyer's land title was forged, but ordered the seller to refund the Kshs 60 million purchase price.

What this practically means

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Executive summary

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The Court of Appeal (Karanja, Sichale and Mbogholi-Msagha, JJA) dismissed the bulk of Darelle Limited's appeal against the judgment of Gacheru J of the Environment and Land Court, which had declared ASL Limited the lawful owner of L.R No. 209/11151 and dismissed Darelle's claim as bona fide purchaser. The appeal was argued on three themes: exclusion of documentary evidence, evaluation of the authenticity of the competing titles, and the propriety of the Chief Land Registrar's ruling and reconstruction of the Deed File. The Court held that the appellant, having obtained leave but never filed an appeal against Kimondo J's ruling excluding documents produced by its advocate witness, could not reopen that issue; that the uncontroverted evidence of lands office officials and document examiners established that the appellant's grant was a forgery which did not emanate from the lands office; that the Registrar acted within section 65(1)(b) of the repealed Registration of Titles Act and her unappealed ruling could not be disturbed; and that the appellant failed to discharge the evidential burden that he who alleges must prove. The Court also noted the 2nd respondent's fraudulent conduct, including a transfer effected in breach of a subsisting injunction. However, the appeal partially succeeded on one point: the trial judge, having herself found that the appellant's only option was a refund of the purchase price from the 2nd respondent, erred in refusing the expressly pleaded alternative prayer. The Court ordered the 2nd respondent to refund Kshs 60,000,000 to the appellant and to bear the costs of the appeal as against the appellant, while dismissing the appeal against the 1st and 3rd respondents with costs.

Key legal issues

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01

Admissibility of secondary documentary evidence through a witness who is not the maker

Holding

The exclusion of the documents was proper; the witness was not the maker, the copies were uncertified, and no appeal was filed against the exclusion ruling

Reasoning

Kimondo J had ruled the documents inadmissible as hearsay since Amyn Mussa was neither maker nor recipient from the maker and the copies were uncertified. Leave to appeal was granted but no appeal was filed, and Gacheru J correctly declined to review that ruling. The Notice to Produce was futile because the 3rd respondent did not possess the documents.

p. 6
02

Authenticity of the two competing grants

Holding

The 1st respondent's grant was genuine; the appellant's grant did not emanate from the lands office, its entries being forgeries

Reasoning

Lands office officials (PW1, PW2, 2DW4) denied signing the appellant's grant and confirmed the 1st respondent's; document examiners corroborated them; the trial judge independently observed three inconsistent sets of the appellant's grant. The appellant's only rebuttal, its own document examiner, did not displace this uncontroverted evidence.

p. 8
03

Validity of the Registrar's ruling and reconstruction of the Deed File

Holding

The Registrar acted within section 65(1)(b) of the (repealed) Registration of Titles Act; the ruling was unappealed and the trial judge made her own independent inquiry

Reasoning

The trial judge had expressly considered section 65(1)(b) of the RTA and found the Registrar had power to investigate and correct entries. The ruling was not appealed, no prayer was sought to set it aside, and the judge independently evaluated the competing titles, so the appellant's complaint of inadequate examination failed.

p. 9
04

Refund of the purchase price from the 2nd respondent

Holding

The trial judge erred in failing to grant the expressly pleaded alternative prayer for refund of Kshs 60,000,000; the appeal succeeds only to that extent

Reasoning

The appellant had pleaded an alternative prayer for refund of the purchase price. The trial judge herself found that the only option available to the appellant was to seek a refund from the 2nd respondent, yet declined to grant the prayer. The Court of Appeal held this was an error and ordered the refund.

p. 10

Legal principles established

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  • A first appellate court must re-appraise the evidence and draw its own inferences before reaching an independent conclusion
  • A party granted leave to appeal against an interlocutory ruling but who fails to file the appeal cannot challenge that ruling in a later appeal
  • He who alleges must prove; the party asserting the genuineness of its title bears the evidential burden
  • A transfer effected in contravention of a subsisting injunctive order known to the transferee is fraudulent, illegal, null and void ab initio

Court orders

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  1. 1.The appellant's appeal against the 1st and 3rd respondents is dismissed in its entirety with costs to the 1st and 3rd respondents
  2. 2.The 2nd respondent Johnstone Kiplimo Chemos shall make an immediate refund of Kshs 60,000,000, being the purchase price of the suit property, to the appellant
  3. 3.The costs of the appeal as against the appellant shall be borne by the 2nd respondent; the appeal succeeds only to that extent

Authorities

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Legislation

  • Evidence ActSection 69
  • Evidence ActSection 70
  • Court of Appeal RulesRule 29
  • Registration of Titles Act (now repealed)Section 65(1)(b)

Cases cited (1)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    (1968) EA 123

    Duty of a first appellate court to re-appraise evidence and draw its own inferences

On appeal from
Environment & Land Court at Nairobi
ELC Case No. 567 of 2008
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules (rule 29 duty to re-appraise evidence); appeal from the High Court (Environment & Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Darelle Limited v ASL Limited & 2 others", Case Analysis (2022). Civil Appeal 403 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/468/eng@2022-03-18

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