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Court of AppealPartially AllowedCivil Appeal E017 of 2020· [2022] KECA 991 (KLR)

Green & another v Kazungu & 2 others

Court of Appeal
23 September 2022
5,636 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that land titles can only be cancelled if fraud is properly pleaded and proven, not merely alleged in testimony.

What this practically means

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Executive summary

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The Court of Appeal at Malindi (Kairu, Nyamweya and Lesiit, JJA) allowed a first appeal against a judgment of the Environment and Land Court (Olola, J) which had declared obsolete and null a 1974 lease over Plot No. 182 Mtondia Settlement Scheme, directed the Director of Land Adjudication and Settlement to accept the 1st respondent's outright purchase payment, and ordered documentation of the plot in the 1st respondent's favour. The appellants, registered proprietors by a certificate of lease traced to the 1974 lease, contended their title was never challenged in the pleadings. The appellate court, re-evaluating the evidence under Rule 31(1)(a) of the Court of Appeal Rules, 2022, framed four issues. It held that the propriety of the appellants' title was not pleaded by the 1st respondent, whose forgery allegations emerged only in oral testimony; under Section 26 of the Land Registration Act and settled pleading principles, the ELC should have treated the certificate of lease as prima facie evidence of proprietorship and disregarded the unpleaded evidence. It further held that fraud must be specifically pleaded and particularised, which was not done regarding the 1974 lease to Cornel Paul Okech. The court also held that adverse orders could not be made against Okech, a non-party, without hearing him, as it is against natural justice to condemn a person unheard. Finally, legitimate expectation arising from the Letter of Offer could not override the law or cancel a certificate of title through the back door. The appeal was allowed, the ELC judgment and consequential orders set aside, with costs of the appeal and the ELC suit to the appellants.

Key legal issues

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01

Whether the propriety of the appellants' title was an issue before the ELC

Holding

It was not; the 1st respondent never pleaded any claim against the appellants' title, so the ELC erred in impeaching it based on unpleaded oral evidence.

Reasoning

The plaint and written statement made no reference to the appellants or their title; allegations of forgery emerged only in testimony. Under settled pleading principles and Section 26 of the LRA, the ELC should have disregarded the unpleaded evidence and treated the certificate of lease as prima facie evidence of proprietorship, especially as the 2nd and 3rd respondents' defence acknowledged the title's validity.

p. 6
02

Whether the 1st respondent demonstrated that the lease issued to Cornel Paul Okech was fraudulent

Holding

No; no particulars of fraud or nullity were pleaded or proved as required by Section 26 LRA and Order 2 Rule 10 of the Civil Procedure Rules.

Reasoning

The reference to Cornel Paul Okech's title appeared only in the prayers, with no particulars of fraud or nullity anywhere in the plaint or written statement. Fraud must be specifically pleaded, particularised and distinctly proved; it cannot be left to inference. The trial judge failed to address this deficiency in the pleadings and evidence.

p. 7
03

Whether the court could make adverse orders affecting a person not a party to the suit

Holding

It could not; nullifying Cornel Paul Okech's title without joining or hearing him violated natural justice.

Reasoning

Cornel Paul Okech, holder of the 1974 lease declared a nullity, was neither defendant nor third party. As the person who knew how the original title was acquired, he was best placed to explain it. The ELC should have had him enjoined once it noted adverse orders were sought against a necessary party who was left out.

p. 8
04

Whether the doctrine of legitimate expectation applied

Holding

It did not; legitimate expectation cannot override the law or cancel a certificate of title held by a party whose title was not in issue.

Reasoning

The Letter of Offer could not be used through the back door to defeat a certificate of lease. Under Section 26 of the LRA, such title can be challenged only on grounds of fraud, illegality or unprocedural acquisition, not on the basis of a letter of offer. The ELC judge misdirected himself on the law and elevated legitimate expectation above the law.

Legal principles established

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  • A party may not depart from their pleadings or rely on evidence at variance with the pleadings; evidence not supporting pleaded averments goes to no issue and must be disregarded.
  • A certificate of title is prima facie evidence of proprietorship and may only be challenged on the grounds in Section 26 of the Land Registration Act, which must be pleaded and particularised.
  • Fraud must be specifically pleaded with particulars on the face of the pleading, distinctly alleged and distinctly proved, and cannot be inferred from facts.
  • A court cannot make adverse orders against a person who is not a party to the suit; a necessary party against whom adverse orders are sought must be enjoined and heard.
  • Legitimate expectation cannot override the law or be used to defeat a certificate of title through the back door.

Court orders

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  1. 1.The appellants' appeal is allowed, and the judgment of the ELC Civil Case No. 25 of 2014 dated 6th May, 2020 is set aside along with all the consequential orders
  2. 2.The appellants will have the costs of this appeal and of the ELC suit
On appeal from
Environment and Land Court
Malindi ELC Case 25 of 2018
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Green & another v Kazungu & 2 others", Case Analysis (2022). Civil Appeal E017 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/991/eng@2022-09-23

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