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Court of AppealPartially AllowedCivil Appeal (Mombasa) arising from ELC Case No 126 of 2019· [2023] KECA 1188 (KLR)

Kandie v Kakeny (Civil Appeal 31 of 2023) [2023] KECA 1188 (KLR)

Court of Appeal of Kenya
6 October 2023
SKS. Gatembu KairuPNP. NyamweyaGOG. V. Odunga
1,214 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a land buyer's claim because the earlier court decision his entire case depended on had already been overturned.

What this practically means

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Executive summary

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The Respondent sued the Appellant by plaint dated July 1, 2019, seeking a declaration that the Appellant held Mombasa Municipality/Block XXVI/212 in trust for him, cancellation of the Certificate of Lease and the sale agreement of January 7, 2010, injunctions, and transfer of the property, having allegedly received only Kshs 300,000 of the Kshs 10,000,000 purchase price. The Appellant's defence was that he paid the full price and that the suit was statute-barred. The trial court found the cause of action arose only when ownership was confirmed in ELC Case No 22 of 2012, held the suit was not time-barred, placed the burden of proving payment on the Appellant relying on Sections 109 and 112 of the Evidence Act and Anne Wambui Ndiritu v Joseph Kiprono Rokoi, found payment was not made, and granted the prayers sought save general damages. On appeal, the Court of Appeal (Kairu, Nyamweya and Odunga JJA) noted that the Respondent's claim was hinged on the ELC No 22 of 2012 finding, which this Court had already set aside in Civil Appeal No 88 of 2019 (Waterfront Holdings Ltd v David Kipkurui Kandie & 2 Others), upholding Waterfront Holdings Ltd's title. The Respondent's cause of action was therefore 'founded on quicksand and is unsustainable'. The Court set aside the judgment of September 21, 2021, dismissed the suit, and, considering the unique circumstances, made no order as to costs both in the trial court and in the appeal. The appeal was delivered at Mombasa on October 6, 2023.

Key legal issues

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Sustainability of the Respondent's claim after the foundational ELC No 22 of 2012 decision was overturned

Holding

The Respondent's claim depended entirely on the finding in ELC No 22 of 2012 that the suit property belonged to the Appellant; that decision was set aside in Civil Appeal No 88 of 2019 (Waterfront Holdings Ltd), so the claim had no basis and had to fail

Reasoning

The Court noted that the Respondent's claim against the Appellant was hinged on the trial court's finding in ELC No 22 of 2012, as reflected in the trial Judge's holding that the cause of action arose only on determination of ownership in that case. In Civil Appeal No 88 of 2019, this Court found the ELC No 22 of 2012 decision was arrived at in error, set it aside, and upheld Waterfront Holdings Ltd's title. With that foundation gone, the Respondent's cause of action rested on 'quicksand' and the entire judgment below fell with it.

p. 3

Legal principles established

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  • A cause of action founded on a decision later set aside on appeal cannot stand; where this Court set aside the ELC No 22 of 2012 decision, the claim built on it is unsustainable

Court orders

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  1. 1.The judgment made on September 21, 2021 in ELC Case No 126 of 2019 is set aside
  2. 2.The Respondent's suit is dismissed
  3. 3.No order as to costs, both before the trial court and in this appeal

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)(a)
  • Evidence ActSections 109 and 112

Cases cited (2)

  • Anne Wambui Ndiritu v Joseph Kiprono Rokoi & Another
    1 EA 334
  • Waterfront Holdings Ltd v David Kipkurui Kandie & 2 Others
    Civil Appeal No 88 of 2019
On appeal from
Environment and Land Court, Mombasa
ELC Case No 126 of 2019
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kandie v Kakeny (Civil Appeal 31 of 2023) [2023] KECA 1188 (KLR)", Case Analysis (2023). Civil Appeal (Mombasa) arising from ELC Case No 126 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1188/eng@2023-10-06

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