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Court of AppealPartially AllowedCivil Appeal No. 79 of 2007· [2015] KECA 457 (KLR)

Benja Properties Limited v H.h. Dr. Syedna Mohammed Burhannudin Sahed & 4 others

Court of Appeal
31 July 2015
JMJ.W. MweraFSF. SichaleJOJ. Otieno-Odek
5,786 words in judgment
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The bottom line

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Kenya's Court of Appeal cancelled a land title issued over already privately owned land, confirming that the first grant always wins and claims against the Government expire fast.

What this practically means

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Executive summary

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This first appeal concerned the legality of a grant issued by the Commissioner for Lands in December 1996 over LR No. 209/12999, a parcel that overlapped land privately registered pursuant to grants of 1907 and 1911. The High Court (Visram J.) had cancelled the appellant's grant, holding that the allotment contravened section 3(a) of the Government Lands Act because the suit land was alienated private property, not unalienated government land, and had dismissed the appellant's third-party claim for damages and indemnity against the Attorney General and the Commissioner for Lands as statute-barred. The Court of Appeal allowed the appeal only on costs. It affirmed the cancellation of the appellant's title, holding that registration in 1907 and 1911 moved the land out of the ambit of the GLA, so the allotment to the original allottees was a paper transaction without a parcel as substratum and void ab initio. The court distinguished double allotment, following Wreck Motors Enterprises and Faraj Maharus: where the Commissioner mistakenly issues two grants over one parcel, the first in time prevails and the second is challengeable. On the third-party claim, the court held the cause of action against the Government accrued in 2000 on actual knowledge of the competing claim, making it statute-barred under section 3(1) and (2) of the Public Authorities Limitation Act, and that estoppel cannot enlarge limitation periods. However, persuaded by the reasoning in Gitwany Investment, the court set aside the order of costs in favour of the 4th and 5th respondents, holding the Commissioner for Lands, as author of the litigation, should bear no costs; costs were awarded to the 1st to 3rd respondents only, in both courts. The judgment binds lower courts on the invalidity of allotting alienated private land and the priority of earlier grants.

Key legal issues

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01

Validity of allotment of alienated private land by the Commissioner of Lands

Holding

The appellant's grant was void ab initio because the suit land had already been alienated and privately registered in 1907 and 1911, moving it outside the Government Lands Act.

Reasoning

The respondents' root of title dated to grants of 1907 and 1911. Registration converted the land from unalienated government land to private property, removing it from the ambit of the GLA, under which the President could only grant unalienated government land. The purported allotment to the original allottees and the subsequent grant to the appellant were therefore paper transactions without a substratum and illegal and void ab initio.

p. 5
02

Whether the case was one of double allotment

Holding

It was not; double allotment presupposes unalienated government land allotted twice, whereas here there was no unalienated government land at all.

Reasoning

The court distinguished double allotment, which occurs when specific unalienated government land is allotted to two different persons. Here the land was private property, so the purported allotment was of land that was neither government land nor unalienated government land. The first-in-time doctrine still applied to give the respondents' earlier grant priority.

p. 5
03

Priority of competing titles

Holding

Following Wreck Motors and Faraj Maharus, the earlier grant takes priority and the later grant is challengeable and not indefeasible.

Reasoning

Guided by its own earlier decisions and the persuasive High Court authority in Gitwany Investment, the court held that where the Commissioner of Lands mistakenly issues two titles over the same parcel, the first in time prevails because it retains its sanctity, while the second title is relegated to a level of legal disability with remedies lying elsewhere.

04

Limitation of the appellant's claim against the Government

Holding

The cause of action accrued in 2000 when the appellant was served with the statement of claim and had actual knowledge of the competing claim; the claim against the 4th and 5th respondents was statute-barred.

Reasoning

Section 3(1) and (2) of the Public Authorities Limitation Act bars tort claims against the Government after twelve months and contract claims after three years. The appellant's assertion that the cause of action arose on delivery of judgment in 2007 contradicted its own conduct in issuing a Third Party Notice and its claim for damages from 13 June 1996. The court declined to engage with the constitutionality of section 13A of the Government Proceedings Act since the limitation bar disposed of the claim.

p. 8
05

Costs of the suit

Holding

The award of costs against the appellant in favour of the 4th and 5th respondents was set aside because the Commissioner of Lands caused the litigation by illegally allotting private land.

Reasoning

While costs follow the event and appellate interference with discretion requires showing the discretion was exercised wrongly, the trial court should have considered the role of the 5th respondent in un-procedurally and illegally allotting private land. Following the reasoning in Gitwany Investment, the author of the misfortune should bear the costs, so costs were awarded to the 1st to 3rd respondents only.

p. 9

Legal principles established

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  • Once land has been alienated and privately registered, it ceases to be unalienated government land and cannot be re-allotted by the Commissioner of Lands or the President; any such grant is void ab initio.
  • Where conflicting grants are issued over the same parcel, the first in time prevails and the second grant, though apparently regularly issued, is not indefeasible.
  • An allotment of land cannot attach or vest where no specific parcel of land exists; paper allotments without a parcel as substratum confer no interest in land.
  • Estoppel cannot override express statutory limitation provisions or extend a limitation period.
  • A cause of action against the Government under the Public Authorities Limitation Act accrues when the claimant has actual knowledge of the claim, not when judgment is later delivered.

Court orders

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  1. 1.Appeal against the cancellation of the appellant's title dismissed
  2. 2.The part of the High Court judgment relating to costs set aside in entirety
  3. 3.Substituted order that the appellant shall pay costs of the 1st, 2nd and 3rd respondents only in the High Court
  4. 4.No costs awarded to the 4th and 5th respondents at the High Court
  5. 5.The appellant shall pay costs of the 1st, 2nd and 3rd respondents in this appeal
  6. 6.The 4th and 5th respondents, having not appeared, shall have no costs
On appeal from
High Court of Kenya at Nairobi
HCCC No. 73 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules; the judgment does not cite a specific constitutional or statutory provision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (22)

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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, "Benja Properties Limited v H.h. Dr. Syedna Mohammed Burhannudin Sahed & 4 others", Case Analysis (2015). Civil Appeal No. 79 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/457/eng@2015-07-31

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