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Court of AppealDismissedCivil Appeal No. 38 of 2018

Kenya Ihenya Company Ltd & another v Njeri Kiriba [2019] KECA 749 (KLR)

Court of Appeal of Kenya
10 May 2019
3,253 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that whoever was first allocated a plot keeps it, even if land was later registered in someone else's name.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Visram, Kiage & J. Mohammed, JJ.A) dismissed an appeal against the Environment and Land Court's decision (K. Bor, J.) which had directed Kenya Ihenya Company Ltd to execute transfer documents registering two Githurai plots, including Nairobi/Block 124/144, in favour of the respondent, Njeri Kiriba, and restrained harassment of her on the land. The appellants, the company and Mary Muthoni Ndegwa (the current registered owner, who was not joined as a party), raised twelve grounds, principally that the 2nd appellant was a bonafide purchaser with an unimpeachable title, that orders were granted on unpleaded issues and against a non-party, and that the respondent's claim was statute-barred. The Court, exercising its Rule 29 duty to re-appraise the evidence, found the respondent's receipts corroborated her payment for two plots completed by 1983, while the appellants' evidence did not explain how the alleged source of the 2nd appellant's chain of title acquired the land. Applying M'Ikiara M'Rinkanya, the Court held there was a double allocation and the first allottee in time prevailed. On the unpleaded-issue objection it applied Odd Jobs v Mubia, holding both parties had litigated proprietorship. The 2nd appellant was held not to have been condemned unheard since her claim was the company's main defence and she testified as its sole witness. The limitation objection failed because the respondent denied service of the 1998 notices and the suit followed her attack and the burning of her house. The appeal was dismissed with costs. This judgment binds subordinate courts and the ELC on first appellate re-appraisal, double allocation, unpleaded issues and hearing of non-parties whose claims are litigated by a party.

Questions the Court framed

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

  1. 1.Whether the learned Judge erred in failing to treat the 2nd appellant as a bonafide purchaser with an unimpeachable title
  2. 2.Whether the trial court was entitled to grant orders and direct transfer of the suit land not expressly sought in the pleadings
  3. 3.Whether the trial court improperly issued adverse orders against the 2nd appellant who was not a party to the suit
  4. 4.Whether there was double allocation of the suit land and, if so, which allottee prevails
  5. 5.Whether the respondent's claim over the suit land was statute-barred under Section 7 of the Limitation of Actions Act

Key legal issues

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01

Double allocation of the suit land and priority of allotment

Holding

The 1st appellant allotted the suit land to both the respondent and the 2nd appellant; the respondent, being first in time and having completed payment in 1983, was the bonafide proprietor

Reasoning

The respondent produced receipts from the 1st appellant corroborating payments from 1973 until she completed payment for two plots in 1980 and 1983, and was issued a share certificate. The 1st appellant's evidence was silent on how Christopher K. Saina, the alleged source of the 2nd appellant's chain of title, acquired the land. Relying on M'Ikiara M'Rinkanya, where a first allotment was never cancelled it cannot be re-allocated. The 2nd appellant only claimed purchase on 24th June, 1997.

p. 3
02

Whether orders affecting a non-party were properly issued

Holding

Although the right to be heard is fundamental, the 2nd appellant was given an opportunity to present her case because her claim was the 1st appellant's main defence and she testified as its sole witness

Reasoning

The Court invoked the principle of natural justice that no person should be condemned unheard. It noted that the record did not show what became of the 2nd appellant's application to be joined, but that she could not complain of being unheard since the 1st appellant pleaded and litigated her claim to the suit land and called her as its only witness.

p. 4
03

Limitation of actions - whether the claim was time barred

Holding

The claim was not time barred because the Court doubted that the cause of action accrued in 1998; the respondent denied service of the notices to vacate and the suit followed her being attacked and her house burnt down

Reasoning

Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years from accrual. The appellants pegged accrual to the 24th December, 1998 notice to vacate, but the respondent denied under cross-examination ever being served and was consistent that she was unaware of the 2nd appellant's claim when filing suit. The suit was filed after she was attacked and her house burnt.

p. 4
04

Whether the trial court could decide and grant relief on an unpleaded issue

Holding

The trial court was entitled to direct registration of the suit land in the respondent's favour because both parties led evidence on proprietorship, leaving the issue to the court for decision

Reasoning

While a court generally should not pronounce on issues not raised in the pleadings, following Odd Jobs v Mubia a court may base a decision on an unpleaded issue where the course of the trial shows the issue was left to the court. Here both sides led evidence on proprietorship of the suit land, and once the judge found the respondent to be the legal proprietor, directing registration in her favour could not be faulted.

p. 4

Legal principles established

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  • A first appellate court must re-appraise and re-examine all the evidence afresh and arrive at its own independent conclusions
  • In a dispute over competing interests in land, a court must inquire into the basis of each claim and cannot simply dismiss a claim merely because the land is registered in another's name, especially where fraud is imputed
  • Where there is a double allocation of a plot, the first allottee in time prevails where the first allotment was never cancelled
  • A court may base its decision on an unpleaded issue if it appears from the course of the trial that the unpleaded issue was left to the court for decision
  • A person whose claim is set up as the principal defence of a party, and who is called as that party's witness to testify on the claim, cannot claim to have been condemned unheard even if not joined as a party

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellants to pay the costs of the appeal

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court at Nairobi
E.L.C No. 205 of 2016
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules (Rule 29) in an appeal from the Environment and Land Court

Relief refused

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The appellants' entire appeal on all 12 grounds

The Court found no reason to interfere with the trial court's findings on the receipts, double allocation, hearing of the 2nd appellant, or limitation

p. 4

Costs

The appeal was dismissed with costs to the respondent.

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.

Consequently, we find that the appeal lacks merit and is hereby dismissed with costs.
p. 4Final orders - dismissal of the appeal
We are required to re-appraise all the evidence and re-examine the same in a fresh and exhaustive way and arrive at our own independent conclusions.
p. 1Duty of a first appellate court
the learned Judge was bound to look into the basis of each claim and could not simply dismiss the respondent’s claim on the ground that the suit land was registered in the 2 nd appellant’s favour especially since the respondent had imputed fraudulent conduct on the part of the 1 st appellant.
p. 3Inquiry into competing land claims notwithstanding registration
since the respondent was first in time, as the evidence is clear that she completed making payments in the year 1983 whilst the 2 nd appellant claimed to have purchased the same on 24 th June, 1997, she was the bonafide proprietor.
p. 3Double allocation - first allottee prevails
we find that she was not condemned unheard but was given an opportunity to present her case.
p. 4Natural justice - non-party heard through the defendant's defence and evidence
In the circumstances, we find the appellants’ assertion that the suit was time barred lacks merit.
p. 4Limitation of actions

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, "Kenya Ihenya Company Ltd & another v Njeri Kiriba [2019] KECA 749 (KLR)", Case Analysis (2019). Civil Appeal No. 38 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/749/eng@2019-05-10

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