Tenai v Sidhu & 5 others (Civil Appeal 106 of 2019) [2025] KECA 105 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that expired leaseholders have a legal right to first refusal on renewal, and a land buyer who cannot prove proper due diligence loses the property.
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 Constitution, 2010 and the Land Act, 2012 were applicable in this case
- 2.Whether the doctrine of legitimate expectation was applicable in the circumstances of this case
- 3.Whether the appellant was a purchaser for value without notice
- 4.Who should bear the costs of this appeal
Key legal issues
#Retrospective applicability of the Constitution, 2010 and the Land Act, 2012
The Constitution, 2010 and the Land Act, 2012 were properly applied because the cause of action arose in 2013 when the new lease was issued to the 2nd respondent, not when the old lease expired in 2008.
The court adopted D.T. Dobie's definition of cause of action and identified the challenged acts as the allotment of the land to the 2nd respondent in 2012/2013 and the subsequent transfer to the appellant. Since those acts justified the 1st respondent's suit, the laws in force in 2013 governed. The court nonetheless noted that the repealed Registered Land Act, section 60, also provided for pre-emptive rights, so the substance of the right existed under both regimes.
Applicability of the doctrine of legitimate expectation
The doctrine applied: the 1st respondent, as immediate past leaseholder with a pending renewal application acknowledged by the Commissioner of Lands, had a reasonable, legally anchored expectation of renewal protected by section 13 of the Land Act.
Applying the CCK v Royal Media principles, the court found an express representation in the Commissioner of Lands' letter of 12th October 2010 confirming approval of the renewal application; the expectation was reasonable and anchored in section 13 of the Land Act and section 60 of the repealed Registered Land Act. The State respondents adduced no evidence explaining the procedure used to allot the new lease to the 2nd respondent, so the allotment violated the 1st respondent's legitimate expectation. The plea that legitimate expectation was not pleaded failed because the plaint raised it, albeit indirectly, and pleadings are read wholesomely.
Whether the appellant was a bona fide purchaser for value without notice
The appellant failed to establish bona fide purchaser status: the root of the 2nd respondent's title was irregular and the appellant proved no due diligence beyond bare assertion.
Applying Munyu Maina, Samuel Kamere and Dina Management, where a title is under challenge the proprietor must prove legality of acquisition and the court must trace the title to its origin. The only evidence from the State side was an allotment letter and White Card, insufficient to dislodge the 1st respondent's documentary evidence of a pending renewal. The appellant, despite claiming due diligence, exhibited no search document. Since the original lease to the 2nd respondent was not procedurally obtained, the bona fide purchaser defence could not shield the appellant's title.
Non-determination of the counterclaim
The counterclaim lacked merit, so no error arose from the trial court's treatment of it.
The appellant complained that the learned Judge did not render a decision on his counterclaim seeking affirmation of ownership. The Court held that given its conclusions on the invalidity of the root title and the absence of proven due diligence, the counterclaim had no merit and no fault could be attributed to the trial court.
Legal principles established
#- On a first appeal, the Court of Appeal's duty is to re-evaluate, reassess and reanalyse the evidence and determine whether the trial court's conclusions should stand.
- The applicable law in a challenge to a land allocation is that in force when the cause of action arose — the allotment creating the new lease, not the expiry of the old lease.
- Where a registered proprietor's root of title is under challenge, the proprietor must prove the legality of the acquisition beyond producing the title instrument; a court must trace the title to its first allotment.
- An alleged bona fide purchaser for value must adduce evidence of the due diligence actually conducted; failure to do so defeats the defence.
- The immediate past holder of an expired leasehold enjoys a pre-emptive right to allocation under section 13(1) of the Land Act, capable of grounding legitimate expectation.
Court orders
#- 1.Appeal dismissed
- 2.The appellant to bear only the 1st respondent's costs of the appeal; the 3rd, 4th, 5th and 6th respondents denied costs from the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Eldoret
- Not stated in the judgment
- Jurisdiction invoked
- Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act (first appeal)
Relief refused
#Allowance of the appeal and setting aside of the trial judgment
The appeal lacked merit: the trial court correctly applied the 2010 Constitution and Land Act, correctly found the legitimate expectation/pre-emptive right of the 1st respondent was violated, and the appellant failed to prove bona fide purchaser status
Costs in favour of the appellant or against the 3rd-6th respondents
Given the complicit posture of the 3rd to 6th respondents at trial, they were not deserving of costs from the appellant, but the appellant still bears the 1st respondent's costs
Costs
The appeal was dismissed; costs follow the event but the 3rd, 4th, 5th and 6th respondents, due to their complicit posture at trial, are not awarded costs from the appellant; the appellant shall only bear the 1st respondent's costs of this appeal.
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.
Based on the foregoing set of facts and considering that it is the allotment of the suit land to the 2nd respondent that is under challenge, the applicable laws were those in force in 2013.
we are satisfied that there was in existence a pre-emptive right bestowed upon the 1st respondent. It was within his right to develop a legitimate expectation that his lease would be renewed
No evidence was therefore adduced to support the procedure used in granting the lease to the 2nd respondent.
From the record, we are unable to find that the original lease issued in favour of the 2nd respondent was obtained procedurally and legally. It follows that the defence of a bona fide purchaser for value could not shield the appellant’s title.
In the end, we find this appeal is without merit and is for dismissal.
In essence, the appellant shall only bear the 1st respondent’s costs of this appeal.
Issues in the judgment
#The judgment states the 1st respondent testified his lease commenced on 1st October 1909, which is internally inconsistent with the 99-year lease expiring 1st October 2008 and the lease document dated 6th October 1982; elsewhere the court itself records the lease as running from 1st October 1909 to expiry on 1st October 2008.
The judgment contains inconsistent dates for the appellant's acquisition: the 1st respondent's case and one passage of the Registrar's testimony date the transfer to the appellant in 2014, while the appellant testified he purchased in August 2013.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ouya & another v Oseko & 4 others (Civil Appeal E697 & E715 of 2021 (Consolidated)) [2025] KECA 1724 (KLR)[2025] KECA 1724 (KLR)24 Oct 2025
- Wambua v Blue Kiki African Transport Limited (Appeal E226 of 2024) [2025] KEELRC 1228 (KLR)[2025] KEELRC 1228 (KLR)30 Apr 2025followed
- Republic v Ministry of Lands & Settlement & 2 others; Lortele (Exparte) (Environment & Land Miscellaneous Case 9(B) of 2023) [2025] KEELC 1279 (KLR)[2025] KEELC 1279 (KLR)12 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Tenai v Sidhu & 5 others (Civil Appeal 106 of 2019) [2025] KECA 105 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/105/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.