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ELCDismissedCivil Appeal (Memorandum of Appeal filed 2nd May 2019, arising from Thika CMCC No. 1066 of 2009)· [2021] KEELC 1777 (KLR)

Kandara Investment Limited v Richard Kiptalam Biengo [2021] KEELC 1777 (KLR)

Environment and Land Court
30 September 2021
LGL. GACHERU
2,750 words in judgment
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The bottom line

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A landowner kept his plot because he proved his title with documents, while the company alleging fraud produced no evidence to back its claims.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Thika against the judgment of Hon. A. M. Maina (SPM) delivered on 6th November 2018 in Thika CMCC No. 1066 of 2009, in which the respondent, Richard Kiptalam Biengo, had obtained judgment plus costs in a claim for a permanent injunction restraining the appellant, Kandara Investment Limited, from interfering with his ownership and user of LR No. Mitubiri/Wempa Block 1/6496. The appellant contended it was the registered owner and had allocated the land to Mary Njeri Mwangi, alleging the respondent acquired his title fraudulently, lacked a valid share certificate and never balloted. The appellant raised four grounds, attacking the award of the land to the respondent, his shareholdership, absence of a ballot, and alleged fraud. L. GACHERU, J. restated the duty of a first appellate court under Section 78 of the Civil Procedure Act, citing Selle v Associated Motor Boat Co., to re-assess the evidence and reach an independent conclusion. Applying Hubert L. Martin v Margaret J. Kamar, the court required both parties to trace the root of their titles. It found the respondent had proved his root of title through a share certificate dated 5th December 2002 and a letter from Kandara Investment Limited confirming membership certificate No. 11590, making the appellant estopped from denying his membership. The appellant failed to produce membership lists or evidence of the balloting procedure. The court also noted the absence of authority for DW1, the company secretary, to testify, holding it irregular, while cautioning against using Article 159(2)(d) as a panacea for procedural irregularities. The court found the trial magistrate neither erred nor misapprehended the facts and law, and dismissed the appeal entirely with costs to the respondent.

Key legal issues

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01

Whether the respondent proved the root of his title to the suit property

Holding

The respondent proved his root of title through a share certificate in his name and a letter from Kandara Investment Limited confirming his membership, and the appellant was estopped from contravening admitted facts

Reasoning

The respondent produced a share certificate dated 5th December 2002 in his name and a letter dated 16th May 2003 from Kandara Investment Limited addressed to the Land Registrar confirming he held certificate No. 11590. The appellant, alleging the share certificate was a forgery and that the respondent never balloted, failed to produce its membership lists or any regulations governing balloting. The respondent's acquisition from Mary Njeri Mwangi, a member, was therefore supported by evidence, while the appellant failed to prove the root of its own title.

p. 4
02

Whether the appellant's challenge to the respondent's title on grounds of fraud succeeded

Holding

The appellant failed to prove fraud, having produced no evidence of its legitimate membership lists or the balloting procedure

Reasoning

The appellant alleged the respondent's share certificate was forged and that ownership required balloting, but produced no regulations, by-laws or evidence of the allocation and transfer procedure. Its secretary testified without produced authority. Fraud allegations unsupported by evidence could not displace the respondent's documentary proof of title.

p. 3
03

Whether DW1 had authority to testify and litigate for the appellant company

Holding

The court found it irregular for DW1 to appear without express authorization from the company, though this alone did not decide the appeal

Reasoning

Relying on Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd, the court noted that a company secretary cannot institute proceedings without express authority. No authorization or company resolution was produced. However, applying Article 159(2)(d), the court cautioned against using the overriding objective to trash procedural provisions while noting the irregularity.

p. 3
04

The standard for a first appellate court interfering with the trial court's discretion

Holding

An appellate court interferes only where discretion was exercised contrary to law, relevant factors were ignored, irrelevant factors considered, or the decision is plainly wrong

Reasoning

Citing Selle v Associated Motor Boat Co. and Ocean Freight Shipping Co. Ltd v Oakdale Commodities Ltd, the court reiterated that a first appeal is by way of retrial and the appellate court must re-evaluate the evidence while making allowance for not having seen or heard the witnesses, but will not disturb the trial court's discretionary findings absent the established grounds.

p. 3

Legal principles established

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  • On a first appeal, the court must analyze and re-assess the evidence and reach its own independent decision
  • Where two or more titles over the same land compete, the title to be upheld is that which conforms to procedure and traces its root without a break
  • A party alleging fraud or non-compliance with internal allocation procedures must table evidence of those procedures
  • A company secretary cannot institute or defend proceedings in the company's name without express authority; however, Article 159(2)(d) should not be used as a panacea for procedural irregularities

Court orders

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  1. 1.The appeal is dismissed entirely with costs to the Respondent
  2. 2.Judgment of the trial court delivered on 6th November 2018 upheld

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Constitution of Kenya 2010Article 159(2)(d)

Cases cited (5)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
  • Ocean Freight Shipping Co. Ltd Vs Oakdale Commodities Ltd
    (1997) eKLR, Civil App. No. 198 of 1995
  • Hubert L. Martin & 2 Others Vs Margaret J. Kamar & 5 Others
    [2016] eKLR
  • Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd
    HCCC No. 391 of 2000
On appeal from
Chief Magistrates Court, Thika
Civil Suit No. 1066 of 2009
Jurisdiction invoked
First appeal under Section 78 of the Civil Procedure Act

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, "Kandara Investment Limited v Richard Kiptalam Biengo [2021] KEELC 1777 (KLR)", Case Analysis (2021). Civil Appeal (Memorandum of Appeal filed 2nd May 2019, arising from Thika CMCC No. 1066 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1777/eng@2021-09-30

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