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Court of AppealDismissedCivil Appeal No 117 of 2018· [2023] KECA 244 (KLR)

Challo v City Chicken and Eggs Dealers Co-operative Society Limited & another (Civil Appeal 117 of 2018) [2023] KECA 244 (KLR)

Court of Appeal of Kenya
3 March 2023
6,136 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 dismissed a buyer's land claim because he couldn't prove fraud, and the registered owner's title stood.

What this practically means

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Executive summary

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In this first appeal, the Court of Appeal (Murgor, Mohammed and Omondi, JJA) considered the dismissal by the High Court of the appellant's claim to equitable and beneficial ownership of Plot No. 26, LR No. Nairobi Block 122/61. The appellant had purchased the property from Victoria Wanjiku Mburu in May 1995 and had his name entered in the 1st respondent cooperative's register, but the 2nd respondent, who also purchased from the same vendor in 1994, was later registered as titleholder. The trial court dismissed the suit as time barred and for failure to prove fraud. The appellate court framed five issues: limitation, trespass, entitlement to registration, evaluation of the evidence, and the omission of the Land Registrar. The court held that the trial judge erred on limitation: the claim was one in continuing trespass, not adverse possession, and a continuing trespass is not time barred. However, the appeal still failed. Fraud and collusion were not distinctly proved, as required, and the appellant admitted he did not know who altered the register. The vendor's double sale created two competing interests, and the 2nd respondent, being registered, held an indefeasible title under section 26(1) of the Land Registration Act that the appellant failed to impeach. The trial judge's evaluation of the evidence was proper. The attempt to substitute the Land Registrar by amendment was fatally defective, as orders cannot be made against a non-party without breaching Articles 25 and 50 and natural justice. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the suit was time barred

Holding

The trial judge misdirected herself in holding the suit time barred; the claim was one in continuing trespass, not adverse possession, and a continuing trespass is not time barred.

Reasoning

The trial court applied section 7 of the Limitation of Actions Act as if the claim were one of adverse possession. The plaint pleaded trespass from 1995 to 2011. Since the 2nd respondent's occupation continued unabated, each continuance was a fresh trespass giving a new cause of action, so the suit was not barred. This finding, however, did not save the appeal because trespass itself was not proved.

p. 7
02

Whether the tort of trespass was proved

Holding

Trespass was not proved; fraud and collusion were not proved to the required standard, and the 2nd respondent, having also purchased from the same vendor and been registered, was as much entitled to occupation as the appellant.

Reasoning

Sections 107 and 108 of the Evidence Act place the burden of proof on the appellant. Fraud must be distinctly pleaded and proved to a standard higher than balance of probabilities. The appellant admitted he did not know who tampered with the register. Both parties purchased from the same vendor and both were entered in the register; the vendor created two competing interests. The 2nd respondent's occupation was therefore not unauthorized trespass.

p. 8
03

Whether the appellant was entitled to be registered as titleholder

Holding

He was not; the 2nd respondent's certificate of title was prima facie evidence of indefeasible ownership under section 26(1) of the Land Registration Act, and the appellant proved nothing improper in its acquisition.

Reasoning

Section 26(1) makes a certificate of title prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The appellant produced only a sale agreement and payment evidence and advanced no proof that the 2nd respondent's registration was improper. A claimant must stand on the strength of his own title.

p. 10
04

Whether the learned judge properly evaluated the evidence

Holding

The trial judge undertook a proper evaluation of the evidence and rightly dismissed the appellant's case.

Reasoning

The trial court considered all the evidence, including that the vendor sold the property twice, creating competing interests, and correctly faulted the poorly maintained cooperative records for the double entry. The 1st respondent's register did not establish fraud or collusion. The appellate court, having re-evaluated the evidence itself as a first appellate court, found no misapprehension of fact or wrong principle in the trial court's findings.

p. 10
05

Whether the failure to include the Land Registrar as a party was fatal

Holding

The amendment substituting the Land Registrar for the 1st respondent in prayer C was fatally defective because the Land Registrar was not a party and could not be condemned unheard.

Reasoning

Amending the plaint to direct the Land Registrar to rectify the register sought orders against a non-party. That would breach Articles 25 and 50 of the Constitution and the rules of natural justice, since the Land Registrar would not have had the right to be heard. The trial judge was right to decline to grant orders against the Land Registrar.

p. 11

Legal principles established

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  • Trespass to land that continues is a continuing tort, and each continuance gives rise to a fresh cause of action, so a claim in continuing trespass is not time barred.
  • Fraud must be specifically pleaded with particulars and distinctly proved to a standard higher than a balance of probabilities; it cannot be left to be inferred from the facts.
  • A claimant seeking a declaration of title must succeed on the strength of his own title, not on the weakness of the opponent's title, and where two parties assert competing proprietary interests each must produce evidence in support of his claim.
  • A court cannot grant orders against a party who was never joined to the suit; doing so would condemn that party unheard in breach of Articles 25 and 50 of the Constitution and the rules of natural justice.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents

Authorities

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Legislation

  • Limitation of Actions ActSection 7 (Cap 22)
  • Trespass ActCap 294
  • Evidence ActSections 107 and 108
  • Land Registration ActSection 26(1)
  • Societies ActNot specified
  • Constitution of KenyaArticles 25 and 50

Cases cited (9)

  • Selle vs Associated Motor Boat Co Ltd
    [1968] EA 123
  • Mate Gitabi vs Jane Kabubu Muga alias Jane Kabubu Muga & 3 others
    [2017] eKLR
  • Muthiora vs Marion Muthama Kiara (Suing on behalf of the Estate of Erastus Muthamia Kiara - Deceased)
    (Civil Appeal 43 of 2017) [2022] KECA 28
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Kinyanjui Kamau vs George Kamau
    [2015] eKLR
  • Ndolo vs Ndolo
    (2008) 1 KLR (G & F) 742
  • Caroget Investment Limited vs Aster Holdings Limited & 4 others
    [2019] eKLR
  • James Henry Mundiar t/a Kabarak Development Services V. Tradewheel Kenya Ltd
    (1987) eKLR
  • Samuel Otieno Otieno v Municipal Council of Malindi & another
    [2015] eKLR
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal under its appellate jurisdiction (specific statutory provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Challo v City Chicken and Eggs Dealers Co-operative Society Limited & another (Civil Appeal 117 of 2018) [2023] KECA 244 (KLR)", Case Analysis (2023). Civil Appeal No 117 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/244/eng@2023-03-03

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