Tarabana Company Limited v Sehmi & 7 others (Civil Appeal (Application) 463 of 2019) [2023] KECA 1346 (KLR)
The bottom line
#Kenya's Court of Appeal allowed this land dispute to go to the Supreme Court, saying the law on innocent land buyers and unshakeable titles is unsettled and needs clarification.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal to the Supreme Court raises issues of general public importance warranting certification
- 2.Whether leave to appeal to the Supreme Court should be granted under article 163(4) of the Constitution
Key legal issues
#Whether the questions raised - legitimate expectation in renewal of leases, whether an irregular allocation can create a genuine title, and whether an innocent purchaser's title can be challenged - constitute matters of general public importance
Yes. The court found uncertainty in the law on innocent purchaser for value and indefeasibility of title, and held that the questions go beyond the parties' interests and their determination by the Supreme Court would be of public good.
The court applied the Hermanus Steyn criteria and the Mitu-Bell elaboration. It noted the Supreme Court's recent decision in Dina Management on innocent purchasers where land was not available for allocation, and observed apparent conflicting decisions cited by the parties on the Torrens system and indefeasibility. Because the questions affect persons beyond the litigants and would clarify unsettled law, they satisfy the general-public-importance threshold.
Whether leave to appeal to the Supreme Court should be granted
Granted, with fourteen days to file the intended appeal.
Having found that the test in Hermanus Steyn was met, the court granted leave to the applicants to file the intended appeal in the Supreme Court within fourteen days and ordered each party to bear their own costs of the application.
Legal principles established
#- For certification, the intending appellant must show that the issue for appeal transcends the circumstances of the particular case and has a significant bearing on the public interest.
Court orders
#- 1.Leave granted to the applicants to file the intended appeal in the Supreme Court within fourteen (14) days of the date of the ruling
- 2.Each party to bear their own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Civil Suit ELC Case No 1311 of 2014 (originating from the Environment and Land Court)
- Jurisdiction invoked
- Article 163(4) of the Constitution, rules 24 and 26 of the Supreme Court Rules and rule 40 of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is therefore our holding That the application has met the test in the now-famous Hermanus Steyn case.
we find that indeed, there is uncertainty in the law with regard to the concept of the innocent purchaser for value, and to the indefeasibility of titles as is apparent in the various decisions cited by the parties
Accordingly, we hereby grant leave to the applicants to file the intended appeal in the Supreme Court within fourteen (14) days of the date hereof. Parties do bear their own costs of this application.
Issues in the judgment
#The judgment inconsistently describes the parties' roles: the 1st and 3rd respondents are said to have filed suit and won at trial, yet the ruling describes them as 'applicants' seeking to appeal a judgment that had allowed the appeal in favour of the appellant; the applicants are also said to have brought the motion, while elsewhere the '1st and 3rd respondents, the applicants herein' seek certification.
The motion is expressed to be brought under article 163(4) of the Constitution and rules 24 and 26 of the Supreme Court Rules but is lodged and determined in the Court of Appeal, an unusual venue for a Supreme Court leave application.
The applicants' cited case 'Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Supreme Court Application No 4 of 2022' bears a citation date later than the application of October 22, 2021, and the judgment elsewhere cites the same case as [2013] eKLR.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tarabana Company Limited v Sehmi & 7 others (Civil Appeal (Application) 463 of 2019) [2023] KECA 1346 (KLR)", Case Analysis (2023). null. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1346/eng@2023-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.