Haji v Attorney General & 4 others; Athman & another (Interested Parties) (Petition 29 of 2022) [2024] KEELC 457 (KLR)
The bottom line
#Both sides lost their claims over Lamu/Manda Island/259 because neither could prove how their title was actually acquired.
What this practically means
#Executive summary
#Key legal issues
#Res judicata and parties never heard in prior litigation
The court declined to apply res judicata strictly against the 3rd to 5th respondents because they were never parties to Malindi ELC Petition No 62 of 2012 and were never heard, so the judgment and decree do not bind them; they were allowed to have the cross-petition evaluated on its merits.
The court examined the record of the former petition and found that although Swaleh Mohammed Waziri purportedly represented the respondents, the actual registered proprietors (Amina Athman, Abdulmajid Mahmoud, Mohamed Ahmed and Andrew Kimani Mwangi) were never parties and no authority for representation was shown. Applying the Supreme Court's guidance in John Florence Maritime Services, the court held that where parties were not heard, applying res judicata would cause substantial injustice; the cross-petition was therefore determined on its merits instead.
Unexplained root of title - failure of both sides to trace root of title
Both the petitioner's chain of acquisition and the cross-petitioners' claim to have fulfilled allotment conditions failed for want of evidence, so neither title could be preferred.
The petitioner could not explain whether the parcel was executed in favour of Houd Mahmoud Athman after the 2012 judgment and transferred to him, or whether Houd surrendered it to the State for reallocation, or whether NLC acted on its own motion or court order with gazettement. The cross-petitioners conceded in cross-examination that they did not comply with the 30-day conditions in the letter of allotment, and their Power of Attorney was unregistered. The court found the root of title had been 'erased' and a new title emerged in 2021 without explanation.
Bona fide purchaser for value without notice
The court could not conclusively uphold the 2nd interested party's title as a bona fide purchaser because the provenance of the vendor's (petitioner's) title was unexplained.
While accepting the Dina Management and Katende tests for a bona fide purchaser, the court noted that the petitioner's own acquisition was unexplained. The 2nd interested party paid Kshs 5,000,000 and obtained a Certificate of Lease, but since the root of the petitioner's title was erased and untraceable, the court found itself unable to prefer either competing title, suggesting the competing claimants may need a fresh contest to trace the root.
Registration of Power of Attorney
The unregistered Power of Attorney held by Ali Haidar Ali offended Section 9 of the Registration of Documents Act, but following Stephen Lolo Tathi, the court found the respondents had authority to plead through other means and it did not adversely affect the proceedings.
Section 9 of Cap 285 requires compulsory registration of documents within two months of execution; no evidence of compliance existed. However, citing Nambuye J in Stephen Lolo Tathi & others v Mahahm Musa Kioko Ziwani Mosque & School Association, the court noted that Order 1 rule 12 permits one plaintiff to act for others with written authority, and the defect did not go to affect the proceedings adversely.
Legal principles established
#- When a registered proprietor's root of title is challenged, it is not enough to dangle the instrument of title as proof of ownership; the proprietor must prove the legality of how the title was acquired.
- The doctrine of res judicata applies to constitutional litigation but should not be applied at the cost of real injustice; substantial injustice or special circumstances can warrant an exception.
- A bona fide purchaser for value without notice must hold a certificate of title, purchase in good faith without knowledge of fraud, for valuable consideration, from a vendor with apparent valid title.
- A Power of Attorney must be registered under the Registration of Documents Act (Cap 285) to be effective, though an unregistered one may not fatally affect proceedings where other authority exists.
Court orders
#- 1.Dismissal of the main petition filed by Abdulahi Fara Haji
- 2.Dismissal of the cross-petition filed by the 3rd to 5th respondents
- 3.Each party to bear its own costs of the proceedings
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution over land and environment disputes; petition filed under the Bill of Rights.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Tight Solutions Limited v Kidege Investment Limited & 4 others (Environment and Land Constitutional Petition 24 of 2022) [2025] KEELC 263 (KLR)[2025] KEELC 263 (KLR)29 Jan 2025applied
Cite this brief
#Cite this brief
Caselaw, "Haji v Attorney General & 4 others; Athman & another (Interested Parties) (Petition 29 of 2022) [2024] KEELC 457 (KLR)", Case Analysis (2024). Petition dated 24th November 2022 (Malindi ELC Constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/457/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.