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ELCPartially AllowedChamber Summons dated 31st October 2012 arising from Constitutional Petition (Mombasa)· [2017] KEELC 2730 (KLR)

Mohansons (Kenya) Limited v Registrar of Titles & 2 others [2017] KEELC 2730 (KLR)

Environment and Land Court of Kenya
6 June 2017
EMEdward M. Muriithi
4,319 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected a registered landowner's title and ordered possession restored, but refused to block a bank from selling the property under its charge.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (Muriithi J) on a Chamber Summons dated 31st October 2012 seeking conservatory orders in a constitutional petition by the petitioner, the registered proprietor of L.R. No. MN/I/2149 Beach Road, Nyali (Title No. C.R. 14642). The petitioner complained that the 2nd Respondent, claiming the property for the estate of her late husband, repeatedly attempted to use police to gain possession, and that the Registrar of Titles withheld official search records, the title file reportedly missing. The court, having earlier granted ex parte orders and extended them subject to the condition that the 2nd Respondent not be evicted if in possession, joined Equatorial Commercial Bank as interested party as chargee. Applying the settled constitutional test of arguable case, nugatory harm and public interest, the court held that the petitioner's certificate of title was presumptively valid under section 23 of the Registration of Titles Act (now section 26 of the Land Registration Act, 2012), that no fraud vitiating the title had been determined, and that the petition was a proper constitutional claim for Article 40 protection, not a disguised ownership dispute. It held that conservatory orders could not defeat the chargee's statutory power of sale. The Chamber Summons was allowed: prayer 4 was granted so that the 2nd Respondent, if in possession, gives vacant possession to the petitioner pending determination of the petition; prayer 5 was granted until further orders, except for entries relating to the Interested Party's statutory power of sale or execution of valid decrees; the Interested Party was expressly left at liberty to exercise its statutory power of sale. Costs were in the cause.

Key legal issues

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01

Whether the petitioner established an arguable case as registered proprietor

Holding

Yes - the petitioner's registered title is protected and the 2nd Respondent disclosed no fraud against the petitioner; the petitioner has a strong prima facie case

Reasoning

The court applied the settled test for conservatory orders in constitutional litigation. Section 23 of the Registration of Titles Act (now section 26 of the Land Registration Act, 2012) makes a certificate of title conclusive evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party, or illegal, unprocedural or corrupt acquisition. No such determination existed against the petitioner; any such claim by the 2nd Respondent must be pursued in appropriate proceedings.

p. 6
02

Whether the petition was a proper constitutional claim or should be litigated in a civil court

Holding

The petition asserting Article 40 property rights is competent; the ownership challenge is for the respondent to bring in a suitable forum

Reasoning

The court held the petition was not a disguised land dispute but an assertion of the constitutional right to protection of property and access to information held by the State regarding the title records. The rule of specificity of constitutional pleadings was not violated. If the 2nd Respondent contends the title is vitiated by fraud or irregularity, it is for her to move the appropriate court in suitable proceedings for such determination.

p. 6
03

Whether the Interested Party's chargee interest limits the conservatory orders

Holding

Yes - the conservatory orders are granted subject to the chargee's statutory power of sale and execution of decrees

Reasoning

The petitioner's title was expressly subject to encumbrances, including the Interested Party's registered charge dated 20th March 1997. As chargee and judgment creditor under Court of Appeal Civil Appeal No. 236 of 2006, the Bank's interest lay in realising its security. The court fashioned a remedy preserving the property for the petitioner against the 2nd Respondent while leaving the chargee's statutory power of sale unimpaired.

p. 7
04

Whether the petition would be rendered nugatory and the public interest

Holding

Yes - absent conservatory orders the property could be disposed of and the petitioner deprived of its rights; the public interest lies in upholding the rule of law promise to registered proprietors

Reasoning

If the respondents disposed of or adversely dealt with the property pending the petition, a successful petition would be rendered nugatory. Article 10 of the Constitution requires observance of the rule of law; the law keeps its promise to the registered proprietor unless fraud, misrepresentation to which he is party, or illegal, unprocedural or corrupt acquisition is proved and determined.

p. 7

Legal principles established

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  • The test for conservatory orders in constitutional litigation is arguable case, irreparable/nugatory harm, and public interest
  • A certificate of title is conclusive/prima facie evidence of ownership and is not challengeable except on fraud or misrepresentation to which the proprietor is a party, or illegal, unprocedural or corrupt acquisition
  • Fraud vitiating a title must be proved before a court can disregard the protection of a registered proprietor's title
  • A registered proprietor's title carries legal possession sufficient to evict a trespasser even without physical possession
  • Conservatory orders protecting a registered proprietor's proprietary rights must recognise and be subject to a chargee's encumbrance

Court orders

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  1. 1.Prayer No. 4 of the Chamber Summons granted - the 2nd Respondent, her agents or servants to give vacant possession of the suit property, if she be in possession, to the Petitioner or its nominees pending determination of the Petition
  2. 2.Prayer No. 5 of the Chamber Summons granted until further orders of the Court, unless the entries relate to dealings by the Interested Party in exercise of its statutory power of sale or in execution of a valid Decree or Order of a competent court
  3. 3.The Interested Party is at liberty to exercise its statutory power of sale over the property under the Charge as well as any sale in execution of any decree issued by any Court of competent jurisdiction
  4. 4.Costs in the Cause

Authorities

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Legislation

  • Constitution of Kenya 2010Article 23(3)
  • Constitution of Kenya 2010Article 40
  • Constitution of Kenya 2010Article 40(6)
  • Constitution of Kenya 2010Article 10
  • Registration of Titles Actsection 23(1)
  • Land Registration Act, 2012section 26(1)
  • Registered Land Actsections 27 and 28

Cases cited (14)

  • Moya Drift Farm Ltd. v. Theuri
    (1973) EA 114
  • Muslims for Human Rights (MUHURI) & 4 Ors. v. Inspector General of Police & 2 Ors.
    Mombasa Constitutional Petition No. 62 of 2014
  • Giella v. Casman Brown
    (1973) EA 385
  • Kenya Transport Association Limited v. Cabinet Secretary for Transport and Infrastructure and Ors.
    Mombasa HC Petition No. 16 of 2014
  • Muslim for Human Rights and 2 Ors v the Attorney General
    Mombasa High Court Petition No. 7 of 2011
  • Harun Barky Yator v. Judicial Service Commission (JSC)
    Mombasa High Court Petition No. 47 of 2011
  • Nairobi High Court Petition No. 557 of 2013
  • Mecha Magaga v Jackson Obiero Magaga
    (2014) eKLR
  • Mbuthia v. Jimba Credit Corporation
    (1988) KLR 1
  • Wreck Motor Enterprises v Commissioner of Lands & 3 others
    [1997] eKLR
  • Republic v Land Registrar Taita Taveta District & another
    [2015] eKLR
  • Anerita Karimi Nejru v. A.G No. 1
    (1979) KLR 154
  • Park View Shopping Arcade v. Kangethe & 2 Ors.
    (KLR) (E&L) 592
  • Equatorial Commercial Bank Limited proceedings between the Bank and the petitioner
    Civil Appeal No. 236 of 2006
Jurisdiction invoked
Article 40 of the Constitution of Kenya 2010 (protection of property rights), with remedy under Article 23(3)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mohansons (Kenya) Limited v Registrar of Titles & 2 others [2017] KEELC 2730 (KLR)", Case Analysis (2017). Chamber Summons dated 31st October 2012 arising from Constitutional Petition (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2730/eng@2017-06-06

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