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ELCPartially Allowed· [2017] KEELC 2243 (KLR)

Emfil Limited v Attorney General & 423 others (Environment & Land Case 113 of 2015) [2017] KEELC 2243 (KLR)

High Court of Kenya
20 July 2017
2,439 words in judgment
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The bottom line

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Kenya's High Court struck out the defences of over 300 parties claiming land under titles already declared void, confirming they had nothing to defend.

What this practically means

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Executive summary

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The plaintiff moved the Court by two chamber summons applications dated 28th September 2016 and 1st February 2017 under Orders 1, 2, 10 and 50, seeking the striking out of the defences of all defendants on record and judgment as prayed in the plaint, with costs in the cause. The applications were supported by affidavits of James Gitau Singh, Athanas Kyalo Muli (a surveyor who confirmed the defendants' titles related to the same property as the plaintiff's) and Vinuchandra Popat, who relied on prior litigation - HCCC 181 of 2007 (Sergon J) and Court of Appeal Civil Appeal No 314 of 2012 - both decided in the plaintiff's favour. The 12th, 142nd, 145th, 147th, 149th and 318th defendants opposed through Adranius Maria Verhoef's affidavit, contending the applications were defective in form, premature, and that their defences of bonafide purchase for value without notice under section 53 of the Land Registration Act raised triable issues. The 157th, 158th, 161st, 166th and 167th defendants argued the indefeasibility of the plaintiff's title had never been determined and the application failed to specify the Order 2 rule 15 sub-rule invoked. Omollo J dismissed the procedural objections under article 159(1) of the Constitution, applied the D.T Dobie test and Order 2 rule 15, and held that the prior judgments - operating in rem - had declared parallel titles of no legal effect before the defendants acquired theirs, so neither bonafide purchase nor alleged unlawful acquisition of the plaintiff's title raised any triable issue. The court found this 'a clear case for striking out' and allowed both applications as prayed.

Key legal issues

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01

Effect of prior judgments (HCCC 181 of 2007 and Civil Appeal No 314 of 2012) on the defences

Holding

The prior decisions confirm the plaintiff's title and declared parallel titles null and void; the defences raise no triable issue

Reasoning

Justice Sergon declared titles issued to intruders on the plaintiff's land irregular, unlawful, null and void, and the Court of Appeal quashed the gazette notice revoking the plaintiff's title by certiorari, mandamus and prohibition. Defendants who acquired titles after 2010, and after the 2010 judgment, claim under titles already declared of no legal effect. That judgment operates in rem and binds them; a bonafide purchaser defence is unavailable since sellers had nothing to sell. The allegation that the plaintiff's title was unlawfully acquired fails because no court-ordered revocation steps were taken.

p. 4
02

Procedural objections: chamber summons rather than notice of motion, and failure to specify the Order 2 rule 15 sub-rule

Holding

Neither omission is fatal; the court invokes article 159(1) to avoid procedural technicality

Reasoning

The court invoked article 159(1) of the Constitution, which mandates it not to give undue regard to procedural technicalities, holding the defendants knew what case they had to meet so the form of application caused no prejudice. Similarly, although the application under Order 2 rule 15 failed to specify sub-rule (a), (b), (c) or (d), the grounds on the face of the application showed it was not brought under 15(a), and no prejudice was demonstrated by the defendants.

p. 3
03

Scope of the power to strike out pleadings under Order 2 rule 15 and D.T Dobie

Holding

The power should be exercised after considering all facts but without embarking on the merits; defences that are frivolous, vexatious or an abuse of process fall to be struck out

Reasoning

The court adopted the D.T Dobie & Co (K) Ltd v Muchina formulation that striking out is exercised only after the court has considered all facts, without expressing opinions on merits. Applying Order 2 rule 15(1)(b)-(d), the court found the defences either pleaded bonafide purchase under titles already nullified, or alleged unlawful acquisition of the plaintiff's title without any court decision to that effect, so neither set raised a triable issue.

p. 3

Legal principles established

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  • A judgment declaring titles void operates in rem, so persons claiming under titles declared of no legal effect cannot raise a defence of bonafide purchaser for value without notice
  • Where the original grantee had violated the terms of the grant, revocation of the grant must be effected through an order of the court, and absent such steps a party cannot allege the plaintiff's title was unlawfully acquired

Court orders

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  1. 1.The two applications dated 28th September 2016 and 1st February 2017 are allowed as prayed
  2. 2.The defences of the defendants on record are struck out and judgment is entered for the plaintiff as prayed in the plaint (as sought in the applications)
  3. 3.Costs of the applications to be in the cause (as sought)

Authorities

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Legislation

  • Constitution of Kenya, 2010article 159(1)
  • Civil Procedure RulesOrder 1, 2 (rule 15), 10 & 50
  • Land Registration Actsection 53

Cases cited (3)

  • D.T Dobie & Co (K) Ltd v Muchina
    [1982] KLR 1
  • Emfil Limited v Registrar of Titles Mombasa
    [2014] eKLR
  • Emfil Limited v Hamisi Mwalimu & 9 others
    HCC 181 of 2007, delivered 29th October 2010
Jurisdiction invoked
Not expressly stated; the court invoked article 159(1) of the Constitution 2010 and Order 2 rule 15 of the Civil Procedure Rules, striking out defences and entering judgment as prayed in the plaint

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, "Emfil Limited v Attorney General & 423 others (Environment & Land Case 113 of 2015) [2017] KEELC 2243 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2243/eng@2017-07-20

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