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ELCOtherPetition dated 24th November 2022 (Malindi ELC Constitutional Petition)· [2024] KEELC 457 (KLR)

Haji v Attorney General & 4 others; Athman & another (Interested Parties) (Petition 29 of 2022) [2024] KEELC 457 (KLR)

Environment and Land Court of Kenya
31 January 2024
8,594 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Both sides lost their claims over Lamu/Manda Island/259 because neither could prove how their title was actually acquired.

What this practically means

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Executive summary

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This first-instance petition before the Environment and Land Court at Malindi concerned the competing claims over parcel No Lamu/Manda Island/259. The petitioner, Abdulahi Fara Haji, sought declarations that the certificates of lease held by the 3rd to 5th respondents were mere pieces of paper and permanent injunctions restraining interference with the suit property, which he had transferred to the 2nd interested party (Goodison Nine Limited) for Kshs 5,000,000. The 3rd to 5th respondents filed a cross-petition seeking declarations that their title was valid and that the petitioner's and 2nd interested party's titles were fraudulently obtained, plus rectification of the register and aggravated damages. The court framed seven issues including res judicata, fraud, and bona fide purchaser status. Examining the record of Malindi ELC Petition No 62 of 2012 (Angote J.), the court found that although the respondents' titles had been declared null and void in that petition, the current 3rd to 5th respondents were never parties to it and were never heard, so res judicata could not be strictly applied against them; the cross-petition was instead determined on its merits. Ultimately, both claims failed on the evidence. The petitioner could not explain how his 2021 title arose - whether from execution of the prior judgment, surrender by Houd Mahmoud Athman, or fresh reallocation by the State. The cross-petitioners' Power of Attorney was unregistered contrary to Section 9 of the Registration of Documents Act, and they conceded non-compliance with the 30-day conditions in their letter of allotment. The court found the root of title had been erased and could not prefer either title. Both the petition and cross-petition were dismissed, with each party bearing its own costs.

Key legal issues

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01

Res judicata and parties never heard in prior litigation

Holding

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.

Reasoning

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.

p. 10
02

Unexplained root of title - failure of both sides to trace root of title

Holding

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.

Reasoning

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.

p. 11
03

Bona fide purchaser for value without notice

Holding

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.

Reasoning

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.

p. 15
04

Registration of Power of Attorney

Holding

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.

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 1.Dismissal of the main petition filed by Abdulahi Fara Haji
  2. 2.Dismissal of the cross-petition filed by the 3rd to 5th respondents
  3. 3.Each party to bear its own costs of the proceedings

Authorities

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Legislation

  • Land Registration ActSection 26
  • Land Registration ActSection 26(1)(a)(b), Section 80
  • Registration of Documents Act Cap 285Section 9, Section 4
  • Constitution of KenyaArticles 159, 50, 48
  • National Land Commission ActSection 14(1)
  • Civil Procedure Rules (Order 1 rule 12(1) and (2))Order 1 rule 12

Cases cited (27)

  • Houd Mahmoud Athman v The Attorney General & others
    Malindi ELC Petition No 62 of 2012
  • Swaleh Mohamed Waziri & 3 others v Houd Mohmoud Athman & another
    Civil Appeal No 128 of 2018
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR; (Petition 17 of 2015) [2021] KESC 39 (KLR)
  • Bubaki Investment Company Ltd v National Land Commission & 2 others
    [2015] eKLR
  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
    [2020] eKLR
  • Urmila w/o Mahendra Shah v Barclay Bank International Ltd & another
    [1979] eKLR
  • Cordison International (K) Ltd v Chairman National Land Commission & 44 others
    [2019] eKLR
  • R v City Council of Nairobi & 3 others
    [2014] eKLR
  • Dina Management Ltd v County Government of Mombasa & 5 others
    (Petition 8 of 2021) [2023] KESC 30 (KLR)
  • Alice Chemutai Too v Nickson Kipkirui Korir & 2 others
    2015 eKLR
  • Attorney General v Halal Meat Products Ltd.
    [2016] eKLR
  • Nakuru Industries Ltd. v S. S. Mehta & Sons
    [2016] eKLR
  • Gladys Wanjiru Ngacha v Theresa Chepsaat & 4 others
    [2013] eKLR
  • Laban Omuhaka Otumbula v Truphosa Okutoyi
    Kakamega High Court Civil Appeal No 49 of 2014, [2019] eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited and six others
    [2015] eKLR
  • Dr. Joseph Arap Ngok v Justice Moijo Ole Keiuwa & 5 others
    Civil Appl. No NAI 60 of 1997
  • Katende v Haridar & Company Limited
    [2008] 2 EA 173
  • Joseph Gitari v Muthui Chomba & 7 others
    [2018] eKLR
  • Wainaina v Kiguru & another
    (Environment & Land Case E023 of 2021) [2022] KEELC 3261 (KLR)
  • Hebert L Martin & 2 others v Margaret J Kamar & 5 others
    [2016]
  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No 239 of 2009 [2013] eKLR
  • Samuel Kamere v Lands Registrar, Kajiado
    Civil Appeal No 28 of 2005 [2015] eKLR
  • Nelson Kazungu Chai & 9 others v Pwani University
    [2014] eKLR
  • African Line Transport Co Ltd v Attorney General, Mombasa
    HCCC No 276 of 2003 [2007] eKLR
  • Stephen Lolo Tathi & others v Mahahm Musa Kioko Ziwani Mosque & School Association
    [2003] eKLR
  • Karam Chand another v Union of India and others
  • Muiri Cofiee case (as referenced in John Florence Maritime Services)
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.