Kipsirgoi Investment Limited -vs- Kenya Anti-Corruption Commission Civil Appeal No. 288 of 2010 (Unreported)

Case Caption:

In the Court of Appeal at Eldoret (Coram: Karanja, Ouko & Gatembu, J.J.A); Civil Appeal No. 228 of 2010; Kipsirgoi Investments Limited v Kenya Anti-Corruption Commission.

Case URL:

Unreported

Summary Significance:

A court may enter summary judgement in a case where the defense is a sham. The creation of title in land should follow the law as it is otherwise invalid.

Applicable laws:

ā— Section 3 of the Government Lands Act Cap 280; Laws of Kenya (Repealed)
ā— Section 3 of the Physical Planning Act Cap 283; Laws of Kenya (Repealed)
ā— Order 6, Rule 13 of the Civil Procedure Rules, 2010
ā— Sections 143 and 23 of the Registered Land Act Cap 300; Laws of Kenya (Repealed)

Brief Facts:

The Respondent filed a suit in the High Court seeking orders for the cancellation of the Appellantā€™s title over the land described as Eldoret Municipality/Block 3/28 (the suit land). The Respondent alleged that the suit land was Government land reserved for public utility as an open space and was therefore not available for alienation. The Respondentā€™s investigations established that the Appellant had been allocated the suit land unlawfully and fraudulently by the then Permanent Secretary in the Office of the President. The Appellant denied that the property had been illegally alienated. It also contended that it had indefeasible title under the Registered Land Act that could not be nullified. The Respondent proceeded to apply for the Appellantā€™s defence to be struck out and judgement be entered in its favour via Chamber Summons application dated 27th October 2009. In a ruling delivered on 7th July 2010, the High Court held that the Appellantā€™s defence was a sham raising no triable issues and granted the Respondentā€™s prayers. The Appellant was aggrieved by the High Courtā€™s decision and instituted the present appeal on the grounds that the High Court Judge (the judge) erred in law and fact by striking out its defence, failing to recognize that it had a valid defence, failing to recognize that a first registration could not be cancelled under Section 143 of the Registered Land Act, failing to give a proper hearing and that the Judgeā€™s decision infringed on its right to property.

Issues for Determination:

Whether the Judge correctly applied the principles applicable in the exercise of jurisdiction under rule 13 of Order 6 of the Civil Procedure Rules

Holding:

The court cited the case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another, Civil Appeal No. 37 of 1978 where the Court of Appeal expounded on the principles to be considered. It held that ā€œNo suit ought to be summarily dismissed unless it appears hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment.ā€ In the case at hand, the COA went on to remark that the critical question that needed to be addressed was whether the suit land having been alienated remained available for public allocation. In citing Section 3 of the Government Lands Act and Section 3 of the Physical Planning Act the court stated that unalienated land was land for which no specific purpose had been designated. It additionally stated that there was uncontested material before the court that the suit land was alienated for use as a public open space. Therefore, the suit land not available for allocation. On the issue of sanctity of title raised by the Appellant, the court cited Kenya Anti-Corruption Commission v Ahmed Karama Said (2011) eKLR and stated that creation of title has to be in accordance with the applicable law. In conclusion, the court held that in light of the fact that the suit property was allocated for public utility and was no longer available for allocation for private use, no purpose would have been served in having a trial over the issue. The court therefore dismissed the appeal.

Case Download:

No file available for download

Share this page: