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ELCPartially AllowedEnvironment and Land Case Civil Suit 328 of 2019· [2023] KEELC 17884 (KLR)

Abdis World Group of Companies Limited v Nandrat & 2 others

Environment and Land Court
18 May 2023
19,233 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~77 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff company sued for a permanent injunction, declarations of ownership and damages over L.R No. 209/12594 (I.R No. 205587), Nairobi, alleging that the 1st Defendant had invaded the property. The 1st Defendant counterclaimed, asserting title derived from a 1995 allotment to Bull Holders Investment Ltd and a certificate of title issued in 1995; the 2nd Defendant, who bought the property from the plaintiff in May 2020 while this suit was pending, also counterclaimed for declarations, injunctions and, in the alternative, a refund of the purchase price of Kes. 44,300,000. The court held that DW1 could testify on an unregistered power of attorney, following Mayfair Holdings Ltd v Ahmed. It found the plaintiff's suit disclosed no cause of action because the plaintiff had sold and transferred the property to the 2nd Defendant during the pendency of the suit, divesting herself of any right to sue, and the suit was an abuse of process. On title, the court held the Certificate of Lease issued to the plaintiff's vendors on 22 December 2017 was a nullity: it was issued by the Chief Land Registrar in 2017 on a 1995 allotment without the mandate of the National Land Commission, over land already subject to the earlier allotment to Bull Holders, and without a Part Development Plan. The 2nd Defendant failed the bona fide purchaser test, the sale offending lis pendens. The plaintiff's suit was struck out with costs; the 2nd Defendant's counterclaim was dismissed save for the alternative refund claim, which succeeded by default, with interest at 14% per annum from May 2020; the 2nd Defendant's lease was revoked and the property declared to belong to the 1st Defendant.

Key legal issues

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01

Capacity of DW1 under an unregistered power of attorney

Holding

Non-registration did not vitiate DW1's authority or the probative value of his evidence

Reasoning

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.

02

Whether the Plaintiff's suit disclosed a cause of action

Holding

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

Reasoning

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.

03

Validity of the Plaintiff's root of title

Holding

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

Reasoning

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.

04

Whether the 2nd Defendant was a bona fide purchaser for value without notice

Holding

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

Reasoning

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.

05

Reliefs

Holding

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

Reasoning

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.

p. 34

Legal principles established

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  • 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

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  1. 1.The Plaintiff's suit struck out with costs to the Defendants
  2. 2.The 2nd Defendant's Counter-claim dismissed save for the alternative claim for refund of the consideration paid to the Plaintiff
  3. 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. 4.The 2nd Defendant to pay costs of the Counter-claim to the 1st Defendant
  5. 5.The 2nd Defendant entitled to refund of Kes. 44,300,000 against the Plaintiff
  6. 6.The refund to attract interest at court rates (14% p.a.) with effect from May 2020
  7. 7.The suit property L.R No. 209/12594 (I.R No. 205587) declared to lawfully belong to the 1st Defendant
  8. 8.Any other relief not granted deemed declined/dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 67(2)
  • National Land Commission ActSection 5(2)
  • Land Registration ActSection 107(1)
  • Land ActSections 12 and 14
  • Civil Procedure RulesOrder 3 rule 2; Order 17 rule 2(1)
  • Government Lands Act (repealed)
  • (Indian) Transfer of Property Act (repealed)Section 52

Cases cited (34)

  • Wreck Motors Enterprises v The Commissioner of Lands & 3 Others
    Civil Appeal No. 71 of 1997 (unreported)

    Lapse of a letter of allotment not complied with within timelines

  • Dr. Joseph Arap Ngok v Justice Moijo Olekuewa
    (1997) eKLR

    Allotment letters and compliance with conditions

  • Mary Mukami Karithi v Dentonpak Agencies Ltd & 2 Others
    (2021) eKLR

    Validity of allotment letters

  • Bubaki Investment Company Ltd v National Land Commission & 2 Others
    (2015) eKLR

    Allotment of land

  • Nelson Kazungu Chai & 9 Others v Pwani University
    (2018) eKLR / [2014] eKLR

    Requirement of a Part Development Plan before allocation of public land

  • Ndolo v Ndolo
    (2008) 1 KLR

    Standard of proof of fraud

  • Kinyanjui Kamau v George Kamau Njoroge
    (2015) eKLR

    Proof of fraud

  • Katende v Haridar & Company Ltd
    (2008) 2 EA 173

    Requirements of a bona fide purchaser for value without notice

  • Weston Gitonga & 10 Others v Peter Rungu Gikanga & Anothers
    (2017) eKLR

    Bona fide purchaser doctrine

  • Mil Ltd v Registrar of Titles, Mombasa & 2 Others
    (2014) eKLR

    Invalid title as a nullity

  • Caroget Investment Ltd v Aster Holdings Ltd & 4 Others
    (2019) eKLR / [2019] eKLR

    Doctrine of ex nihilo nihil fit

  • Alice Chemutai Too v Nickson Kipkirui Korir & 2 Others
    (2015) eKLR

    Invalid titles

  • Francis Mwangi Mugo v David Kamau Gaciago
    (2017) eKLR

    Want of registration of power of attorney divesting capacity (doubted)

  • Daniel Kipketer Rugut v Ernest Kavai & 5 Others
    (2021) eKLR

    Unregistered power of attorney

  • Mayfair Holdings Ltd v Ahmed
    [1990] eKLR

    Non-registration of a power of attorney does not negate the agent's authority

  • Dodhia v National Grindlays Bank Ltd and Another
    [1970] EA 195

    Doctrine of stare decisis

  • Julianne Ulrike Stamm v Tiwi Beach Hotel Ltd
    (1998) eKLR

    A party may prove its case through a witness other than itself

  • Puis Kimaiyo Langat v Cooperative Bank of Kenya Ltd
    (2017) eKLR

    Definition of cause of action

  • Kigwor Company Ltd v Samedy Trading Co Ltd
    (2021) eKLR

    Definition and scope of cause of action

  • Muchanga Investment Ltd v Safaris Africa (Unlimited) Ltd
    (2009) eKLR

    What constitutes abuse of court process

  • Cordison International (K) Limited v Chairman National Land Commission & 44 others
    [2019] eKLR

    Only the National Land Commission may allocate public land, subject to statutory procedure

  • Sukhdeve Singh Lali v Philip Ojwang Kamau & 3 Others
    (2018) eKLR

    A void act is a nullity (Macfoy v United Africa Co Ltd)

  • Waas Enterprises Ltd v City Council of Nairobi & Another
    (2014) eKLR

    Land under a live allotment letter is not available for reallocation

  • Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others
    [2015] eKLR

    An interest in land cannot be allotted where the parcel does not exist

  • Central Kenya Ltd v Trust Bank & Others
    (1996) eKLR

    Notice of dispute or defect in title by a purchaser

  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & another
    [2015] eKLR

    Doctrine of lis pendens still applicable under common law

  • Cooperative Bank of Kenya Ltd v Patrick Kang'ethe & Another
    (2017) eKLR

    Lis pendens and its statutory basis

  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR

    Elements of a bona fide purchaser for value

  • Mwangi James Njehia v Janetta Wanjiku Mwangi & another
    [2021] eKLR

    Requirements for a declaration of bona fide purchaser status

  • Chemey Investment Limited v Attorney General & 2 others
    [2018] eKLR

    Bona fide purchaser doctrine

  • Joseph Kamau Muhoro v Attorney General & Another
    (2021) eKLR

    A letter of allotment lapses if terms are not complied with in time

  • George Kimani Njuki v National Land Commission & 2 Others
    (2022) eKLR

    Lapse of allotment letters

  • Munyu Maina v Hiram Gathiha Maina
    (2013) eKLR

    Duty to prove root of title when validity of a title is challenged

  • Philemon L Wambia v Gaitano Lusita Mukofu & 2 Others
    (2014) eKLR

    Proof of fraud and root of title

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

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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, "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.