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ELCDismissedELC Civil Appeal No. 6 of 2016· [2017] KEELC 2351 (KLR)

Mohamed Sheikh Abubakar v Zakarius M. Mbaya [2017] KEELC 2351 (KLR)

Environment and Land Court
18 July 2017
2,443 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that a land title obtained while a case is still in court cannot defeat someone already occupying and owning that land.

What this practically means

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Executive summary

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This is a first appeal from the judgment and decree of Hon. SRM S. S. Mushele delivered on 6th December 2001 in Mombasa CMCC 1432 of 1998. The appellant, plaintiff before the trial court, pleaded that he was the allottee of plot L.R 5054/1463 Kilifi and that the respondent entered and constructed without consent; he sought permanent injunction, vacant possession and general damages. The respondent admitted entry but claimed he purchased the portion from Jackson Nzaro in 1996. The trial magistrate found neither party held valid documents when the dispute began, dismissed the suit, directed sub-division of the plot with each party securing title to their portion, and restored the respondent to possession. The appellant raised six grounds, later argued as three: lack of jurisdiction, ultra vires orders not prayed for, and entitlement to judgment on admitted trespass. A. Omollo J applied Selle vs Associated Motor Bike Boat Co on the limits of a first appellate court. On jurisdiction, the court held the magistrate was clothed with jurisdiction when the suit was filed; the appellant's certificate of title, obtained during the pendency of the suit and produced as an exhibit without amendment of the plaint, did not oust it, and the objection raised outside the grounds of appeal was an afterthought. On the merits, the allotment letter was for an unsurveyed plot with a rider disclaiming liability for prior commitments; the respondent's vendors' claims constituted a prior commitment. The appellant, aware of the respondent's interest before registration, could not claim better title through a certificate obtained during the suit, contrary to lis pendens and equity. The dismissal of the suit and restoration of the respondent to possession were sound; only the order for sub-division was erroneous. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Jurisdiction of the subordinate court over land allotted under a letter of allotment

Holding

The trial court was clothed with jurisdiction when the suit was filed and production of the certificate of title during the appellant's evidence, without amendment of the pleadings, did not oust that jurisdiction

Reasoning

The appellant himself instituted the suit in the magistrate's court as a beneficial allottee without a title. At filing, the dispute was one of trespass/allocation which the subordinate court could determine. The title was acquired during the pendency of the suit and produced as an exhibit without amending the plaint; courts analyse evidence at the conclusion of a hearing and a court shown a title as an exhibit cannot prima facie down its tools. The objection was also not raised in the grounds of appeal.

p. 3
02

Competing claims to allotted land and effect of lis pendens

Holding

The land was subject to a prior commitment; the appellant, aware of the respondent's interest before obtaining his title, could not claim a better title through a certificate of title obtained during the suit, contrary to lis pendens and equity

Reasoning

The allotment letter was for an unsurveyed plot with no plot number and carried a rider disclaiming liability for prior commitments. The respondent's vendors laid claim to ancestral occupation, and Ministry of Lands correspondence required re-survey and excision of the respondent's portion. These were competing equitable interests. The title was obtained in 2001 while the suit was pending, engaging lis pendens under section 52 of the TPA as recognized in Mwalji.

p. 3
03

Whether the trial magistrate's orders were supported by the evidence

Holding

The dismissal of the appellant's suit and restoration of the respondent to possession were correct, but the order for sub-division was erroneous

Reasoning

The magistrate found neither party had title when the dispute arose and that the respondent was entitled to the portion he occupied as purchaser for value without notice. Dismissal of the appellant's suit meant nothing stopped the respondent from taking possession, so the magistrate merely stated the resulting position. The sub-division order was the only mistake, being an order not prayed for by either party, but it did not alter the finding that the respondent was entitled to his occupied portion.

p. 4

Legal principles established

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  • A first appellate court should not vary findings of fact of the trial court unless the findings were not based on the evidence adduced or resulted from misapprehension of the law
  • The doctrine of lis pendens applies by operation of law from the evidence even where not pleaded, and prohibits a party from conferring rights to property in dispute during litigation
  • A party who was aware of a competing interest before obtaining title cannot claim a better title merely by virtue of a certificate of title obtained during the pendency of the suit
  • An objection to jurisdiction not raised in the grounds of appeal and taken belatedly is an afterthought; a court with jurisdiction at commencement of suit does not lose it by production of a title as an exhibit without amendment of pleadings

Court orders

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  1. 1.Appeal dismissed
  2. 2.Respondent confirmed as entitled to the portion of land he occupies
  3. 3.The trial magistrate's order directing sub-division of the property set aside as erroneous
  4. 4.Costs of the appeal to the Respondent

Authorities

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Legislation

  • Registration of Titles ActSection 23 (Cap 281, repealed)
  • Civil Procedure ActOrder 11
  • Transfer of Property ActSection 52

Cases cited (3)

  • Selle vs Associated Motor Bike Boat Co
    (1968) EA 123
  • Ephantus Mwangi & Another vs Duncan Mwangi Wambugu
    (1982-88) 1KAR 278
  • Maivji vs US International University & Another
    (1976) KLR 185
On appeal from
Chief Magistrate's Court, Mombasa
CMCC 1432 of 1998
Jurisdiction invoked
First appellate jurisdiction over subordinate court land dispute (Environment and Land Court)

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, "Mohamed Sheikh Abubakar v Zakarius M. Mbaya [2017] KEELC 2351 (KLR)", Case Analysis (2017). ELC Civil Appeal No. 6 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2351/eng@2017-07-18

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