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Court of AppealPartially AllowedCivil Appeal No. 138 of 1997

Pashito Holdings Limited & Another v Paul Nderitu Ndungu & 2 Others

Court of Appeal
14 November 1997
2,613 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled you cannot challenge a land allocation without joining the Commissioner of Lands, and registered titles stand unless the law was broken.

What this practically means

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Executive summary

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The Court of Appeal allowed an appeal against a High Court ruling (Msagha Mbogholi J, 18 April 1997) granting residents of Loresho Estate an interlocutory injunction restraining Pashito Holdings Limited and Shital Bhandari from taking possession of, developing or selling subplots allegedly carved out of land reserved for a police station and a water reservoir. The respondents sued representatively for declarations that the Commissioner of Lands had no power to alienate land reserved for public use and that the allocations to the appellants were null and void. The Court held that the learned judge erred by making findings - including that the re-alienation was not open to the Commissioner and that the alienation was void ab initio - against the Commissioner of Lands, who was neither sued nor served, in breach of the audi alteram partem rule of natural justice. It found no evidence that the two parcels had been formally alienated, reading the judge's 'alienated or designated' as meaning merely 'reserved'. It further held that the appellants' registered titles were indefeasible under section 28 of the Government Lands Act absent infringement of the Act, that section 39 protected purchasers for value without inquiry, and that the judge's remarks about equity frowning at the transactions were gratuitous since equity cannot override express statutory provisions. The respondents therefore failed to establish a prima facie case with probability of success under Giella v Cassman Brown. The appeal was allowed, the injunction set aside, and costs of the appeal and in the High Court awarded to the appellants. Locus standi was expressly left open for trial.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents' claim disclosed a cause of action against the appellants
  2. 2.Whether the respondents had locus standi
  3. 3.Whether the declarations sought concerned the Commissioner of Lands who was not a party to the proceedings
  4. 4.Whether the appellants' titles issued under the Act could only be challenged under that Act
  5. 5.Whether the respondents had made out a prima facie case for an interlocutory injunction

Key legal issues

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01

Natural justice - condemnation of a non-party (Commissioner of Lands) without hearing him

Holding

The learned judge erred in making findings against the Commissioner of Lands without joining or hearing him; the rule of audi alteram partem was breached

Reasoning

The real issue was whether the Commissioner had authority to alienate the land, yet he was not a party. Resolving that issue behind his back breached natural justice. The judge should have directed that the Commissioner was a proper party without whom relief against him could not be granted; the respondents alone should suffer the consequences of not suing him.

p. 3
02

Whether the two parcels had been formally alienated so as to bar re-alienation

Holding

There was no evidence the parcels had been formally alienated to the Commissioner of Police or the City Council; the judge's use of 'designated' meant only 'reserved'

Reasoning

The judge held the parcels had been alienated and could not be re-alienated, but the Court found no evidence of formal alienation. The judge's own qualification 'alienated or designated' showed awareness that the parcels had not been alienated; 'designated' meant reserved, which does not bar alienation under the Government Lands Act.

p. 3
03

Indefeasibility of registered titles and protection of purchasers for value

Holding

Absent infringement of the Act, the appellants' registered titles are indefeasible; the judge's remarks about precaution in land dealings and equity frowning at the transaction were gratuitous

Reasoning

Section 28 makes a proprietor's right not liable to be defeated except as provided by the Act, and section 39 protects persons dealing for valuable consideration without inquiry into circumstances of registration. There was no evidence of infringement of the Act or of fraud, so equity could not override the express statutory provisions.

p. 4
04

Requirements for an interlocutory injunction (Giella v Cassman Brown)

Holding

The respondents failed to satisfy the parameters for an interlocutory injunction; the judge did not exercise his discretion judicially

Reasoning

A prima facie case with probability of success is essential, and it could not be established without the Commissioner as a party. No direct cause of action was pleaded against the appellants, any injury to respondents was remote, and interference with proprietary rights was not prima facie justified, particularly absent evidence of fraud.

p. 5

Legal principles established

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  • A finding that alienation of reserved public land was void cannot be made on an interlocutory application without the Commissioner of Lands' participation in the proceedings
  • A plaintiff cannot establish a prima facie case with probability of success against a defendant where the relief sought effectively condemns a non-party who has not been heard
  • Equity cannot override the express provisions of law; registered titles under the Act are indefeasible absent infringement of the Act

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the learned Judge of 18th April 1997 set aside
  3. 3.Costs of the appeal and costs in the High Court awarded to the appellants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3063 of 1997
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (appeal from ruling and order in H.C.C.C. No.3063 of 1997)

Relief refused

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Interlocutory injunction restraining the appellants from taking possession of, fencing, developing or selling the suit parcels

Respondents failed to establish a prima facie case with probability of success without the Commissioner of Lands as a party; no evidence of fraud or wrongdoing by the appellants

p. 5

Costs

Costs of the appeal as well as the costs in the High Court awarded to the appellants

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For these reasons, we allow the appeal and set aside the order made by the learned Judge on 18th April, 1997. We award the costs of the appeal as well as the costs in the High Court to the appellants.
p. 5Final orders - appeal allowed, injunction set aside, costs to appellants
No such finding prima facie or final can be made without the Commissioner's participation in the proceedings.
p. 3Natural justice - non-party cannot be condemned
Thus, unless there is any infringement of the Act on their part, the appellants' titles are indefeasible.
p. 4Indefeasibility of registered title
It is trite that equity cannot override the express provisions of law.
p. 4Equity cannot override statute
The respondents could not have established a prima facie case with a probability of success which is an essential legal requirement in order to be entitled to an interlocutory injunction unless the Commissioner was a party to the proceedings.
p. 4Prima facie case requirement for interlocutory injunction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Pashito Holdings Limited & Another v Paul Nderitu Ndungu & 2 Others", Case Analysis (1997). Civil Appeal No. 138 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/423/eng@1997-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.