English Voice Real Estate Limited v Kazungu (Suing as the Guardian Ad-Litem and Heir of the Estate of the Late Baya Yaa Baya) & 3 others

2. The applicant’s motion is brought on the grounds that the intended appeal arises out of the Judgment in ELC No. 57 of 2017 where the learned Judge allowed the suit led by the 1st , 2nd and 3rd respondents and ordered cancellation of the titles to Gede/Dabaso/576 and Gede Dabaso /578 (the suit properties) in the name of the applicant, and that they revert to the 2nd and 3rd respondents names; that the applicant intends to lodge an appeal that raises several triable issues, which are inter alia that the trial court erroneously reached a nding under section 26(1) (b) of the Land Registration Act, yet the suit was brought under the provisions of section 26(1) (a) of the Land Registration Act; that the applicant holds legitimate and indefeasible titles to the suit properties while the respondents have no titles registered in their names in respect of the suit properties; that the Judgment is an abrogation to the principle of sanctity of title, which courts are required to uphold; that the trial court completely absolved the applicant of any wrongdoing regarding the transactions leading to the sale and purchase of the suit properties and failed to consider that applicant's arguments and evidence that it was an innocent purchaser for value and duly held titles to the suit properties; and that, further, the court erroneously relied on the 2nd and 3rd respondent's uncorroborated evidence. 3. It was contended that, unless a stay of execution of the Judgment and Decree is granted, the 1st, 2nd and 3rd respondents will proceed to execute the Decree with the result that the applicant's intended appeal will be rendered nugatory, and that it will have been deprived of its interests and rights to the suit properties. 4. The application was supported by the adavit of Christine Constable, the director of the applicant, in which she reiterates the grounds on the face of the application and further deposed that the Judgment found that a sale agreement ranks in priority to a Certicate of Title which was an abrogation to the principle of the sanctity of title. Annexed to the motion is a Notice of appeal dated 20th March 2024. 5. In their grounds of opposition dated 12th April 2024, the 1st respondent opposed the application on the grounds that: the application is misconceived, incompetent and or otherwise an abuse of the court process, and that it ought to be dismissed; that the suit properties in question are agricultural land within a controlled area, transactions aecting it are controlled transactions which in law become void in the absence of consent from the Land Control Board; that the provisions of the Land Control Act are imperative to the extent that there is no room for the application of any doctrine of equity; that section 6 of the Land Control Act lays down the sanction for violation of the Act in absolute terms, and that an alienation made in transgression of the Act is ordained to be void for all purposes. 6. It was asserted that the applicant had not obtained consent and that, therefore, the agreement was void for all purposes; that the applicant did not have legitimate and indefeasible titles as alleged in that every subsequent act premised on a nullity cannot accrue legitimacy or legality since sanctity of title was never intended or understood to be a vehicle for fraud or illegalities or an avenue for unjust enrichment of other persons; that a court of law cannot protect title to land which has been obtained illegally or fraudulently merely because a person is entered on the register as proprietor; that, as a consequence, the applicant’s title is a product of fraud. Furthermore, the applicant has not shown how the appeal will be rendered nugatory should it ultimately succeed as the applicant can always be compensated by way of damages; that there is no single bona de arguable ground that has been raised, and neither was any draft memorandum of appeal annexed to the application in order to warrant ventilation before this Court. 7. In a replying adavit sworn on 12th April 2024, Richard Mark Binns, the 2nd respondent, opposed the application on his own behalf and on behalf of the 3rd respondent, and reiterated the contents of the grounds of opposition. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1913/eng@2024-10-11 2

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8. In their written submissions, learned counsel for the applicant Ms. Omondi and Mr. Omboka reiterated the contents of the grounds of the motion and the supporting adavit. Particularly on the nugatory aspect, it was submitted that, unless the order for stay of execution of the Judgment is granted, the 2nd and 3rd respondents will proceed to execute the Decree and have the titles to the suit properties revert to them before the intended appeal is heard; that the assets of the 2nd and 3rd respondents are unknown and they have not demonstrated by their response that they would be able to pay damages in the event the appeal is successful. 9. On their part, learned counsel Ms. Metto holding brief for Ms. Chepkwony for the 1st, 2nd and 3rd respondents, submitted that the applicant does not have an arguable appeal as a draft memorandum of appeal was not annexed to the motion; that the applicant’s title is a product of fraud, and that they established their case against it. 10. On the nugatory aspect, counsel for the respondents submitted that the appeal will not be rendered nugatory as the suit properties can be valued and the applicant compensated in terms of the value; and that they are in a position to pay the value thereof but that, in any event, they do not intend to sell the suit properties. 11. Despite having been served, there was no appearance by the 4th respondent. 12. As a brief background to the dispute, the 1st respondent executed an agreement in 2005 for sale of the suit parcels to the 2nd and 3rd respondents who thereafter took possession. Due to old age and inrmity, the 1st respondent instructed the 4th respondent to oversee the transfer of the suit properties to the 2nd and 3rd respondents; that in 2009, the 4th respondent fraudulently caused the 1st respondent who had by then lost his eyesight to execute another Sale Agreement purporting to sell the same suit properties to the applicant to whom the parcels were transferred, which necessitated the suit. 13. On their part, the applicant claimed that they conducted due diligence on the titles to the suit properties through one Mr. Hargreaves, a representative of Access Kenya Ltd, who was facilitated the transaction, and that they paid a sum of Kshs. 8.14 million; that she acquired the suit properties through the 4th respondent, and that the documents were duly executed by the 1st respondent; that, in 2010 after the transfer was concluded, she went to the site to fence the property and met the 2nd and 3rd respondents who claimed to be the owners of the suit properties. 14. On considering the matter, the trial Judge held that the applicant’s title was procured through misrepresentation by the 4th respondent and, as a consequence, the applicant could not rely upon the doctrine of innocent purchaser for value. The court proceeded to allow the 1st to 3rd respondents suit as prayed. 14. In so far as applications led under rule 5 (2) (b) of this Court rules are concerned, the requirements to be satised are amplied in the case of Republic v Kenya Anticorruption Commission and 2 others [2009] eKLR thus: “ The court exercises unfettered discretion which must be exercised judicially. The applicant needs to satisfy the Court that rst, the appeal or intended appeal is not frivolous, that is to say, that it is an arguable appeal. Second, the Court must also be persuaded that were it to dismiss the application for stay and later the appeal or intended appeal succeeds their results or success could be rendered nugatory”. 15. Concerning whether the intended appeal is arguable, the applicant contends that it has an arguable appeal based on several grounds set out in the motion, inter alia, that: the trial Court was in error https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1913/eng@2024-10-11 3

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in making a nding under section 26(1) (b) of the Land Registration Act, yet the suit was brought under section 26(1) (a) of the Land Registration Act and that, in so nding, the court reached an erroneous decision; that the trial court further failed to appreciate that the applicant holds legitimate and indefeasible titles to the suit properties, whereas, the respondents do not have any titles registered in their names in respect of the suit properties; and that, therefore, the Judgment was an abrogation from the principle of sanctity of title. On their part, the respondents contend that the applicant did not acquire good title in view of their failure to obtain Land Control Board Consent, and of the alleged fraud perpetrated by the 4th respondent. As to whether or not the applicant acquired good title is a matter that we nd to be arguable, and worthy of ventilation before this Court. 16. On the nugatory aspect, the applicant is apprehensive that if the orders for stay are not granted, the respondents will proceed to cancel its name from the register of titles to the suit properties and cause them to revert to the 1st to 3rd respondents’ names; that the assets of the 2nd and 3rd respondents are unknown; and that they have not demonstrated that they would be able to pay damages in the event the appeal is successful. 17. As to whether there is the likelihood of the appeal being rendered nugatory having regard to the circumstances of the case, we are of the view that there is no risk of the titles or the suit properties being removed from the jurisdiction of this Court were they to revert to the 1st to 3rd respondents. We say so because, rstly, the respondents have indicated that they have no intention of selling or transferring them, and secondly, they have also conrmed that in the event they were transferred, there is every likelihood that they would be in a position to compensate the applicant. For these reasons, we are not persuaded that the appeal would be rendered nugatory. 18. In sum, the applicant having failed to satisfy the two limbs required in applications brought under rule 5(2) (b) of the rules of this Court, the Notice of motion dated 3rdApril 2024 is unmerited and is hereby dismissed with costs in the appeal. It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 11TH DAY OF OCTOBER, 2024. A. K. MURGOR JUDGE OF APPEAL .................................... DR. K. I. LAIBUTA C.Arb, FCIArb. JUDGE OF APPEAL .................................... G. V. ODUNGA JUDGE OF APPEAL I certify that this is the true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1913/eng@2024-10-11 4

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