Dhanji & another v County Government of Mombasa & 3 others (Civil Appeal 16 of 2020) [2024] KEELC 6001 (KLR)

The Rating Act requires publication of at least 30 days' notice of rates payable (s.15), payment upon such notice (s.16), and a written demand within 14 days before proceedings (s.17). The 1st Respondent attached no evidence of service of the s.15 notice; no demand was proved served; and no return of service under Order 5 Rule 15 established proper service of summons. Advertising the sale in the dailies without fixing process on a conspicuous part of the property was unprocedural. The trial court's finding on this ground was therefore unimpeachable.

Relying on Katende v Haridar and Dina Management, a purchaser relying on the bona fide purchaser doctrine must prove a certificate of title, good faith, absence of knowledge of fraud, valuable consideration, and a vendor with apparent valid title. Since the entire process leading to the auction was irregular and the transfer occurred while prohibitory orders were in place and litigation was pending (lis pendens), the Appellants could not demonstrate acquisition free of irregularities and were bound by the outcome.

Section 38 of the Land Act governs dispositions of interests in land, and Article 2(6) of the Constitution incorporates international law including the ICESCR, ICCPR and the Banjul Charter, which require consultation, adequate notice and humane procedures before forced evictions. The Appellants demonstrated no basis to interfere with the award; the statutory procedure was not followed and the 2nd Respondent was not given sufficient notice.

Section 27(1) of the Civil Procedure Act confers a discretion that costs of and incidental to all suits follow the event unless the court for good reason orders otherwise. Having failed to establish its claim on appeal, the Appellants were properly ordered to pay the costs of the Respondents who opposed the appeal, while the supporting 1st Respondent was not entitled to costs.