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Court of AppealDismissedCivil Appeal 16 of 2020· [2022] KECA 584 (KLR)

Bandi v Dzomo & 76 others

Court of Appeal
24 June 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
5,917 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a title deed alone does not prove land ownership when the acquisition itself is challenged.

What this practically means

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Executive summary

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The appellant, registered proprietor of land parcel Kilifi/Kijipwa/96 (101.1 acres), sued the 1st respondents for vacant possession, damages and mesne profits. The 1st respondents, numbering 72, counterclaimed, asserting ancestral and continuous occupation and that the land formed part of the Kijipwa Settlement Scheme declared in the early 1980s, from which the appellant - then Director of Settlement in the Ministry of Lands - had fraudulently allocated the entire parcel to himself. The ELC (Olola, J.) dismissed the appellant's claim, allowed the counterclaim, and directed surrender of the title for cancellation. On appeal, the Court of Appeal first declined to entertain the appellant's preliminary objection on the authority for the defence and counterclaim, holding it was raised for the first time on appeal and was an afterthought. On the merits, the court held that although a first registration under section 23 of the repealed Registration of Titles Act ordinarily confers absolute ownership, the appellant's title had been challenged and he bore the burden - which he failed to discharge, not having testified personally - of proving the legality of the acquisition beyond dangling the title instrument. The court found the title was obtained in an opaque manner, noted the state respondents' unexplained silence on the allocation process, and held the 1st respondents, in long occupation, had the better right, possession being a root of title. The appellant's ground on the agreements to move squatters was both absent from the memorandum of appeal and self-contradictory. The appeal was dismissed with costs and the ELC judgment of 22nd November 2019 confirmed; the appeal against the 2nd to 6th respondents had been withdrawn with no order as to costs.

Key legal issues

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01

Whether new issues may be raised for the first time on appeal

Holding

The court declined to consider the appellant's preliminary issue on the defectiveness of the defence and counterclaim because it was raised for the first time on appeal, amounting to an afterthought intended to steal a match.

Reasoning

Rule 107 of the Court of Appeal Rules permits an appellate court to deal with issues in the memorandum of appeal, but the court has severally held it cannot delve into issues never before the superior court. Raising such an issue on appeal is a change of tact and an afterthought; the proper course is to raise all issues at trial so matters are concluded expeditiously and not in installments.

p. 3
02

Effect of first registration and indefeasibility of title

Holding

Section 23 of the repealed Registration of Titles Act did not protect the appellant because his title was challenged and he failed to prove it was regularly and lawfully obtained; title obtained in an opaque manner is not indefeasible.

Reasoning

While a first registration confers absolute ownership, that protection applies only where the title was lawfully acquired. The appellant, who did not testify and sent his son under a power of attorney, adduced no evidence of how the 101.1 acres were allocated to him. The evidential burden lay on him once the title was challenged, and indefeasibility cannot shield fraud or illegality.

p. 7
03

Burden of proof where a registered title is challenged

Holding

The appellant bore the burden of proving the genuineness of his title beyond merely dangling instruments of title; the adverse inference was drawn against the 2nd to 6th respondents, not the appellant, but the appellant still failed to meet his own burden.

Reasoning

Sections 107 to 109 of the Evidence Act place the burden on the person who would fail if no evidence were given. The appellant did not testify and gave no evidence of the allocation process. The ELC's inference was properly directed at the state respondents' silence, and the appellant cannot fault conclusions he himself precipitated by failing to discharge his legal obligation.

p. 8
04

Whether the 1st respondents proved their counterclaim

Holding

The 1st respondents, in occupation of a portion of the suit property with the appellant's knowledge even before registration, had a better right; their claim was not based solely on correspondence or ancestral right.

Reasoning

The exhibits and evidence told a coherent story: occupation predating 1977, agitation leading to declaration of the Kijipwa Settlement Scheme, re-allocation favouring non-residents, and an ongoing allocation process derailed by the appellant's illegal acts. No evidence challenged the authenticity of the correspondence. Possession is a root of title and the slightest possession suffices.

p. 9
05

Whether the ELC erred in failing to determine the validity of the agreements to move squatters

Holding

The ground was not in the memorandum of appeal and could not be entertained; in any event the appellant's reliance on the agreements was approbation and reprobation.

Reasoning

The agreements were undated or unsubstantiated and it was unclear what they were meant to prove. The appellant could not simultaneously claim the respondents were squatters entitled to nothing and that they had agreed to cede part of the land. The trial court could not be faulted for not making a finding on a matter it was not called upon to determine.

p. 8

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate and re-assess the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
  • An appellate court cannot entertain issues raised for the first time on appeal that were never canvassed before the trial court.
  • A registered proprietor whose root of title is challenged must go beyond the title instrument and prove the legality of how the title was acquired.
  • A certificate of title is prima facie evidence of proprietorship but may be challenged where acquired fraudulently, unprocedurally or through corrupt practice.
  • Possession is a root of title; a party in possession has a better right against one who can show no better title.

Court orders

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  1. 1.Appeal against the 2nd to 6th respondents withdrawn with no order as to costs
  2. 2.Appeal against the 1st respondent dismissed with costs
  3. 3.Judgment of the ELC dated 22nd November 2019 confirmed

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 13(1) and (2)
  • Civil Procedure Rules, 2010Order 10
  • Court of Appeal Rules, 2022Rule 107
  • Registration of Titles Act (repealed)Section 23(1)
  • Land Registration ActSection 26
  • Land Adjudication ActSection 26
  • Land Act, No. 6 of 2012Section 134(2), 134(4), 134(c)
  • Agriculture Act (former)Sections 167, 168
  • Evidence ActSections 107, 108, 109, 116
  • Employment ActSection 90 (as cited in quoted passage from Mary Kitsao Ngowa)
  • Public Procurement and Disposal ActGeneral reference

Cases cited (20)

  • Kenya Ports Authority v Kuston (Kenya) Limited
    [2009] 2EA 212

    Duty of a first appellate court to reconsider, evaluate the evidence and draw its own conclusions.

  • Mwanasokoni v Kenya Bus Services
    [1985] KLR 931

    Circumstances in which an appellate court may interfere with findings of the trial court.

  • Mary Kitsao Ngowa & 36 Others v Krystalline Limited
    [2015] eKLR

    Appellate jurisdiction confined to issues presented before the trial court.

  • George Owen Nandy v Ruth Watiri Kibe
    [2016] eKLR

    A litigant is precluded from taking a completely new point of law for the first time on appeal.

  • Nyangau v Nyakwara
    [1986] KLR 712

    New points on appeal permissible only where proceedings were illegal or without jurisdiction.

  • Joseph Arap Ngo'k v Justice Moijo ole Keiwua
    Nai Civil Application 60 of 1997

    Doctrine of first registration under section 23 of the Registration of Titles Act.

  • Samuel Murimi Karanja & 2 others v Republic
    HCCC Criminal Application No. 412 of 2003

    Proposition that registration vests absolute ownership, cited with approval in Joseph Arap Ngo'k.

  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
    (2020) eKLR

    Presumption of regularity.

  • Chimei Investments Limited v A.G & others
    Petition 94 of 2005

    Indefeasibility of title only to the extent the title was created in accordance with applicable law.

  • Elijah Makeri Nyangw vs Stephen Mungai Njuguna & another
    [2013] eKLR

    Section 26 Land Registration Act - title challengeable if fraudulently, unprocedurally or corruptly acquired.

  • Embakasi Properties Limited & anther v Commissioner of Lands & anor
    [2019] eKLR

    Certificate of title conclusive but ownership challengeable on fraud or misrepresentation to which proprietor is a party.

  • Margaret Wanjiru Ndirangu & 4 others v A.G
    (2020) eKLR

    Burden of proof considerations; relied on by appellant.

  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR

    Registered proprietor must prove legality of acquisition when root of title is challenged.

  • Kaduiwo A. Marisin & 7 Others v Samuel Kipsige Arap Soi
    (1997) eKLR

    Requirement of objection under section 26 Land Adjudication Act; relied on by appellant.

  • Kiarie Wamutu v Mungai Kiarie & Another
    (1982) eKLR

    Relied on by appellant regarding the agreement to move squatters.

  • Kibic Star Electro Limited & 2 others v Southern Credit Banking Group
    (Civil Appeal 305 of 2015) [2022] KECA 71 [KLR]

    Rule 107 - court cannot entertain grounds not in the memorandum of appeal.

  • Lazaro Kabebe v. Ndege Makau & another
    (2017) eKLR

    An applicant is only entitled to a portion which he possessed; relied on by appellant.

  • Pankajkumar Hemraj Shah & another v Abbas Lali Ahmed & 5 others
    [2019] eKLR

    Reiterating Benja Properties on possession as root of title.

  • Benja Properties Limited vs. Syedna Mohammed Burhannudin Sahed & 4 others
    [2015] eKLR

    All titles to land are ultimately based upon possession; seisin is a root of title.

  • Ghana of Wuta-Ofei -v-Danquah
    [1961] All ER 596

    The slightest amount of possession would be sufficient.

On appeal from
Environment and Land Court at Malindi
ELC Case No. 65 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 107 of the 2022 Court of Appeal Rules referenced); constitutional/statutory appeal provision not expressly cited

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Bandi v Dzomo & 76 others", Case Analysis (2022). Civil Appeal 16 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/584/eng@2022-06-24

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