Abdis World Group of Companies Limited v Nandrat & 2 others
The bottom line
#A Nairobi land buyer lost her KES 44.3 million title because she bought property while a court case over it was still ongoing, though she gets her money back with interest.
What this practically means
#Executive summary
#Key legal issues
#Capacity of DW1 under an unregistered power of attorney
Non-registration did not vitiate DW1's authority or the probative value of his evidence
Relying on Mayfair Holdings Ltd v Ahmed, the court held registration is not a condition of the attorney's authority as between donor and donee; the document is effective inter partes. The Court of Appeal's binding position under stare decisis (Dodhia) was preferred over contrary High Court authority. Evidence by an agent or witness other than the party is permissible and its weight is a matter of evaluation.
Whether the Plaintiff's suit disclosed a cause of action
No - the Plaintiff, having sold and transferred the property to the 2nd Defendant while the suit was pending, was divested of any cause of action; the suit was stillborn and an abuse of process
Applying the definitions of cause of action in Puis Kimaiyo Langat and Kigwor, the court reasoned that once the Plaintiff transferred all her interest in the property, no factual situation remained entitling her to a remedy. The amended Plaint of 14 October 2021 was filed long after the transfer, rendering the suit misconceived and an abuse of the due process of the court.
Validity of the Plaintiff's root of title
The Certificate of Lease issued on 22 December 2017 to the Plaintiff's vendors was a nullity: it was issued by the Chief Land Registrar without NLC mandate over unalienated public land, on a second allotment over land already allotted, and without a Part Development Plan
Article 67(2) of the Constitution and Section 5(2) of the NLC Act vest allocation of public land in the National Land Commission after 2010; the Registrar could not issue a new grant in 2017 on a 1995 allotment. The 10 May 1995 allotment was issued while the earlier 20 April 1995 allotment to Bull Holders was still alive, and lacked a PDP; the documents produced by DW2 were contradictory and contrived.
Whether the 2nd Defendant was a bona fide purchaser for value without notice
No - the purchase was made during pending litigation (lis pendens), the vendor had no valid title to pass, and circumstances (occupation by the 1st Defendant, partial payment) should have raised alarm
Applying Arthi Highway Developers and Mwangi James Njehia on the bona fide purchaser requirements, the court found the 2nd Defendant knew of third-party occupation, the vendor was actively litigating ownership with the 1st Defendant, and the sale contravened lis pendens. The sale agreement was curious, with the consideration not acknowledged in its body and only part payment evidenced.
Reliefs
Plaintiff's suit struck out; 2nd Defendant's counterclaim dismissed except the alternative refund claim, which succeeded by default as the Plaintiff filed no defence to it; the 1st Defendant's certificate of title declared the only legitimate title
Since the Plaintiff never filed a reply or defence to the 2nd Defendant's counterclaim and never denied receipt of the consideration, she was taken to concede the refund claim. The 1st Defendant's counterclaim having been withdrawn, no positive orders were made on it, but the court declared the 1st Defendant's 1995 certificate of title the only legitimate instrument of ownership.
Legal principles established
#- Non-registration of a power of attorney does not deprive the donee of authority to appear and tender evidence for the donor
- A party who sells and transfers the suit property pending litigation is divested of any cause of action over it
- After the Constitution 2010, alienation of unalienated public land is the mandate of the National Land Commission, not the Chief Land Registrar
- Land already subject to a live letter of allotment is not available for a subsequent allocation
- A party cannot pass better title than it has; a purchaser under lis pendens cannot be a bona fide purchaser without notice
Court orders
#- 1.The Plaintiff's suit struck out with costs to the Defendants
- 2.The 2nd Defendant's Counter-claim dismissed save for the alternative claim for refund of the consideration paid to the Plaintiff
- 3.The Certificate of Lease/Title issued in favour of the 2nd Defendant over L.R No. 209/12594 (I.R No. 205587) revoked/nullified
- 4.The 2nd Defendant to pay costs of the Counter-claim to the 1st Defendant
- 5.The 2nd Defendant entitled to refund of Kes. 44,300,000 against the Plaintiff
- 6.The refund to attract interest at court rates (14% p.a.) with effect from May 2020
- 7.The suit property L.R No. 209/12594 (I.R No. 205587) declared to lawfully belong to the 1st Defendant
- 8.Any other relief not granted deemed declined/dismissed
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to title to land (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdis World Group of Companies Limited v Nandrat & 2 others", Case Analysis (2023). Environment and Land Case Civil Suit 328 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17884/eng@2023-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.