Mohamed Sheikh Abubakar v Zakarius M. Mbaya [2017] KEELC 2351 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the subordinate court over land allotted under a letter of allotment
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
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.
Competing claims to allotted land and effect of lis pendens
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
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.
Whether the trial magistrate's orders were supported by the evidence
The dismissal of the appellant's suit and restoration of the respondent to possession were correct, but the order for sub-division was erroneous
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.
Legal principles established
#- 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
#- 1.Appeal dismissed
- 2.Respondent confirmed as entitled to the portion of land he occupies
- 3.The trial magistrate's order directing sub-division of the property set aside as erroneous
- 4.Costs of the appeal to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.