Cherwon v Kisekem Ltd & 3 others (Civil Appeal 240 of 2019) [2024] KECA 482 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that land already registered to a private owner cannot be re-allocated by the Government, and buyers must verify titles carefully before accepting allocations.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court had jurisdiction to determine the suit in light of the Limitation of Actions Act
- 2.Whether the doctrine of res judicata was disregarded by the trial court
- 3.Whether the 1st respondent was properly incorporated at the time of acquisition of the suit land
- 4.Whether the creation of Block 6/301, Block 6/302, and Block 6/306 was a mistake, illegal and unprocedural
- 5.Whether the appellant had acquired a good title to Block 6/306
Key legal issues
#Jurisdiction where a suit is filed outside the 12-year limitation period for recovery of land
Although limitation under Section 7 of the Limitation of Actions Act goes to jurisdiction, the 1st respondent obtained an ex parte order for extension of time under Sections 27 and 28 following the proper statutory procedure, and that grant conferred jurisdiction on the trial court.
The cause of action arose on 14th December 1992 when the appellant was registered as proprietor of Block 6/306, so suit should have been filed by 2004, but was filed in 2006. However, the 1st respondent applied under Sections 27 and 28 of the Limitation of Actions Act, the application was served, heard and allowed in December 2006, and the appellant never challenged that order. Leave having been properly granted, jurisdiction was conferred.
Res judicata
The doctrine was not applicable because the earlier case cited (National Bank of Kenya v Attorney General & Another) did not raise issues substantially in issue with the present suit and was not between the same parties or parties under whom they claim.
Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue must have been heard and finally decided in a former suit between the same parties or parties under whom they claim. The earlier bank case concerned indemnity on a charge over the suit land; the issues were not substantially the same and the parties differed. The bar of res judicata requires all elements to be satisfied conjunctively.
Whether the 1st respondent was properly incorporated at the time of acquisition of the suit land
On the evidence, the 1st respondent was incorporated in 1983, since a lease for 99 years from 1st November 1984 was registered in its name on 4th November 1985, which could not have been done for a non-existent entity.
The appellant alleged incorporation only in 1989 and relied on DW1, a former assistant registrar of companies, whose evidence the learned Judge found unreliable as he did not produce the company file or a duplicate certificate. A lease registered in 1985 in the 1st respondent's name, unchallenged by the appellant, is more consistent with incorporation in 1983 than 1989.
Whether the creation of Block 6/301, Block 6/302 and Block 6/306 over the suit land was illegal and unprocedural
The creation of the three blocks was illegal and unprocedural because the suit land had already been registered in the 1st respondent's name and had thus become private land, unavailable for re-planning or re-alienation.
Following Torino Enterprises v Attorney General, once land is acquired upon registration of title it transmutes from public to private land under Article 64(a) of the Constitution. The 2nd respondent failed to notify the 1st respondent of the re-planning, the title remained with the bank as security and was never cancelled, and the purported re-entry under special condition 2 had to comply with Section 77(1) of the repealed Government Lands Act, which required that a party be heard.
Whether the appellant acquired a good title to Block 6/306
The appellant did not acquire a good title because he failed to exercise due diligence, produced no allotment letter or proof of payment, and the land was not available for alienation having already been registered in the 1st respondent's name.
Under Section 26(1) of the Land Registration Act a certificate of title is prima facie evidence of ownership but is challengeable where it was acquired illegally, unprocedurally or through a corrupt scheme. The appellant had no allotment letter from the government or proof of payment of purchase price, and no evidence was led on how he was allocated Block 6/306. Had he exercised due diligence he would have discovered the suit land already belonged to the 1st respondent.
Legal principles established
#- Once an applicant obtains leave under Sections 27 and 28 of the Limitation of Actions Act to file a suit out of time, that leave confers jurisdiction on the court to determine the suit notwithstanding that the 12-year limitation period has lapsed.
- Registered private land is not available for re-planning, re-survey or fresh alienation by the Government without cancellation of the existing title and notice to the registered proprietor; a title so created is illegal and unprocedural.
- An allottee of government land must exercise due diligence before accepting an allotment and certificate of lease to confirm the land was lawfully available for alienation; failure to do so means no good title is acquired.
- On a first appeal, the Court of Appeal is mandated to re-evaluate the evidence and draw its own conclusions on matters of fact, while making allowance for not having seen or heard the witnesses.
Court orders
#- 1.The appeal is dismissed with costs to the 1st respondent
- 2.The judgment of the High Court declaring the 1st respondent proprietor of the suit land, cancelling the appellant's title to Block 6/306, and restraining the appellant from trespass stands
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31(1) of the Court of Appeal Rules, 2022
Relief refused
#All five grounds of appeal advanced by the appellant
The Court found the grant of leave under Sections 27 and 28 of the Limitation of Actions Act conferred jurisdiction, res judicata was not made out, and the appellant failed to establish a good title to Block 6/306
Costs
Costs of the appeal to the 1st respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The procedure set out for seeking leave to file the suit out of time was followed. The grant of leave conferred jurisdiction on the learned Judge to determine the suit.
Therefore, we find that the doctrine of res judicata was not applicable in the circumstances of this case.
Without any other evidence to the contrary, we find that the 1st respondent was incorporated in 1983.
we find that the 1st respondent still holds a valid title over the suit land and that the creation of the three blocks was illegal and unprocedural.
In the result, we find that the appellant did not acquire a good title to Block 6/306.
Accordingly, we find that the appeal lacks merit and it is hereby dismissed with costs to the 1st respondent. Orders accordingly.
Issues in the judgment
#The judgment contains typographical/formatting artefacts (a stray numbering '1.' before paragraph 38 and what appears to be a mis-set block quoting counsel's hearing) suggesting the copy may be imperfectly transcribed.
The judgment recites the 1st respondent as incorporated on 8th April 1983 in PW1's testimony but the appellant asserted incorporation on 24th January 1989; the Court resolved this on the evidence rather than the flag being a contradiction in the Court's own reasoning.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherwon v Kisekem Ltd & 3 others (Civil Appeal 240 of 2019) [2024] KECA 482 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/482/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.