https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1303

Odiara & another v Falcon Properties Ltd & another (Civil Appeal (Application) E018 of 2025) [2026] KECA 1303 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1303 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E018 of 2025 GV Odunga, HI Ong'udi & B Ongaya, JJA July 10, 2026 Between Tom Ochore Odiara 1st Applicant Ject Limited 2nd Applicant and Falcon Properties Limited 1st Respondent Chief Land Registrar 2nd Respondent (Being an application for certification as a matter of general public importance and leave to appeal to the Supreme Court against the decision of the Court of Appeal at Nairobi (W. Karanja, Asike- Makhandia & M’Inoti, JJ.A.) delivered on 22nd August 2025 in Nairobi Civil Appeal No. 356 of 2018) Ruling 1.This is the Notice of Motion dated 2nd December 2025, brought pursuant to Articles 163 (4) (b) of the Constitution of Kenya, Rules 32 and 33 of the Supreme Court Rules, 2020 and Sections 3A and 3B of the Appellate Jurisdiction Act, Rule 43 of the Court of Appeal Rules 2022. The applicants are seeking for an order to certify that the proposed Appeal against the judgment delivered by the Court (W. Karanja, Asike- Makhandia, & M’Inoti, JJ.A.) on 22nd August 2025 in Civil Appeal No. 356 of 2018 raises matters/questions of general public importance and for leave to appeal the said decision before the Supreme Court. 2.The application is premised on the grounds on its face as well as the 1st applicant’s affidavit sworn on the same date. He deponed that in Nairobi ELC Case No. 450 of 2012, Eboso, J. dismissed a claim by 1st respondent, finding that the applicants had legally acquired the disputed properties through a public auction and rejecting allegations of fraud. However, that the said decision was overturned by the Court’s judgment delivered on 22nd August 2025, which nullified the applicants' titles. The 1st applicant explained that despite challenges such as a misplaced record of appeal that led to a filing delay, W. Karanja JA. vide the ruling dated 28th November 2025 granted an extension of time for filing the current application for certification to the Supreme Court. 3.The 1st applicant further deponed that the Court’s judgment of 22nd August 2025 was based on a misdirection regarding the nature of the Court orders involved. He made reference to the evidence from the Land registry's records showing that the titles were issued based on valid vesting orders that were unchallenged in the original suit. He maintained that the Court erred by nullifying the titles without first setting aside the said underlying vesting orders. He added that the said nullification of titles negatively affected the rights of a third party (Lugman Petroleum Limited), which was not involved in the proceedings. 4.Under paragraph 37 of the supporting affidavit, counsel listed several reasons why he believes that this matter is of great public importance and hence requires determination by the Supreme Court. He attested that Hope Academy and Hope Restoration Church, which serve thousands of community members, were located on the properties and thus faced a threat. He added that granting the orders sought was essential to uphold the principles of fairness and access to justice. 5.When the matter came up for hearing on 25th February 2025, learned counsel Mr. Githinji appeared for the applicants while learned counsel Mr. Kamau appeared for the 1st respondent. Learned counsel Mr. Odongo and Ms Njagi appeared for the 2nd respondent. Counsel for the applicants and 1st respondent informed the court they had filed written submissions which they majorly relied on. Mr. Githinji made brief oral highlights of the submissions in plenary. Mr. Odongo informed the Court that he did not file any response to the application as they were not opposed to it. 6.In the submissions dated 23rd January 2025, learned counsel Mr. Githinji submitted that the present application seeks certification under Article 163 (4) (b) of the Constitution to appeal to the Supreme Court. Counsel argued that the Court erroneously cancelled the applicants’ titles based on a recalled order, despite the fact that the said titles were issued pursuant to vesting orders that had not been challenged, reviewed, or appealed against. 7.Counsel further submitted that the legal dispute in this matter was whether a title acquired through a lawful vesting order could be nullified by a court without first setting aside that underlying order. That the same is presented as a matter of general public importance because it affects the sanctity of judicial orders and property rights protected under Article 40 of the Constitution. He argued that the Court’s decision created uncertainty in land transactions and undermined public confidence in the auction process governed by the Rating Act, the County Governments Act, and Local County rating laws. 8.Learned Counsel asserted that the intended appeal raised significant constitutional and rule-of-law concerns. He cited violation of several Articles of the Constitution, including Articles 10, 47, 48, and 50, as well as principles of judicial authority under Article 159. He submitted that the applicants needed clarification on the interpretation of Section 26 of the Land Registration Act, 2012, specifically on when a purchaser's title at a public auction can be invalidated on account of fraud. 9.Mr. Githinji relied on the case of In the Matter of Hermanus Phillipus Steyn vs Giovanni Gnecchi-Ruscone [2013] eKLR and argued that the application met the established threshold for certification to the Supreme Court. He emphasized that declining this application would cause grave injustice, particularly as the properties in question hosted Hope Academy, which serves 150 children and Hope Restoration Church, which has a community of approximately 1,500 members. Additionally, that the 1st applicant had already sold a portion of the land to a third party, Lugman Petroleum Limited, which was not a party to the proceedings but whose interests were adversely affected without a hearing. 10.In the submissions dated 25th February 2025, learned counsel Mr. Kamau submitted that the application for further litigation before the Supreme Court is unsuitable. He asserted that the applicants were not innocent purchasers for value without notice and that they acquired titles to the suit properties through illegality, fraud and an abuse of the court process. He further submitted that no prohibitory orders were registered against the titles. Additionally, he argued that the 1st Class Magistrate lacked the jurisdiction to order an auction of the properties under Section 17(2) of the Rating Act and that no charges had been registered against the said titles as required by Section 19 of the Rating Act. 11.Counsel asserted that stay of the decisions of the 1st Class Magistrate which included the vesting orders was granted on 17th July, 2008. Further, that a ruling by Muchelule J (as he then was) set aside a previous judgment by Osiemo J, restoring the parties to their original positions, which were protected by a valid stay. Furthermore, that despite being aware of this stay, the applicants proceeded to register the vesting orders and subsequently refused to set a hearing date for the Judicial Review application. He added that the registration of the said orders was made possible by an order the applicants extracted unilaterally, which was later recalled and cancelled by Githua J in a ruling dated 20th July 2012. He submitted that the applicants’ titles are void ab initio and could not be salvaged by an appeal to the Supreme Court because the same were issued based on a cancelled order. 12.In conclusion, Mr. Kamau argued that the questions of law proposed by the applicants such as whether a title acquired through a vesting order can be nullified without first setting aside the said order, do not apply to the facts of this case. He further argued that the vesting orders were never lawful and were registered in defiance of a stay order. He urged the court to dismiss the application, since the dispute herein is confined to the specific illegalities by the applicants and does not raise any substantial question of law. 13.We have considered the application, the grounds in support thereof, the affidavit sworn by the 1st applicant, the submissions of counsel and the law. Before we proceed to determine whether the application meets the threshold for certification for leave to appeal to the Supreme Court, we shall give a brief summary to the dispute. The dispute emanates from the Nairobi Chief Magistrate’s Court Civil Suit nos. 20 of 2007, 22 of 2007, 23 of 2007 and 24 of 2007 where the City County of Nairobi, claiming unpaid rates, obtained exparte judgments and decrees against the 1st respondent. Through execution of the said decrees it sold the suit properties (Nairobi/Block 97/376, Nairobi /Block 97/378, Nairobi/Block 97/379, Nairobi /Block97/380, Nairobi /Block 97/381) to the 1st applicant. 14.Aggrieved by the said decision, the 1st respondent initiated judicial review proceedings and Justice Osiemo rendered a judgment quashing the said decision. However, the decision by Osiemo J was in turn set aside by Muchelule J (as he then was) on an application by the 1st Applicant. This meant that the properties in issue remained vested in the 1st applicant as per the lower court’s judgments and decrees. 15.Thereafter, in Nairobi ELC Case No. 450 of 2012, Eboso, J. dismissed the 1st respondent’s case against the applicants and the 2nd respondent. In the said suit the 1st respondent had sought for cancellation of various titles belonging to the 1st applicant. The court in making its determination noted that the 1st applicant had acquired the suit properties through a public action on the basis of a decree issued by the Magistrate’s Court and subsequent vesting orders. Further, that there was no evidence that the 1st respondent took steps to stay the vesting orders which existed. 16.The learned Judge also noted that there was no evidence that the 1st respondent challenged the ruling by Muchelule, J. in this Court. He held that the 2nd respondent was by law obliged to implement the vesting orders. He further held that there was no legal or factual basis for holding that the transfers presented and registered pursuant to the judgments, decrees and vesting orders of the Magistrate’s Court were fraudulent. 17.The 1st respondent then moved this Court challenging the judgment in Nairobi ELC Case No. 450 of 2012. In its judgment delivered on 22nd August 2025, the Court held in favor of the 1st respondent. It set aside the judgment and decree of the ELC, revoked the certificate of lease issued to the 1st and 2nd applicants and maintained that the suit against the 2nd respondent remained dismissed for want of statutory notice. 18.The applicants are aggrieved by the said judgment and have sought certification for leave to appeal to the Supreme Court. They argued that the Court’s decision creates uncertainty in land transactions and undermines public confidence in the auction process governed by the Rating Act, the County Governments Act, and Local County rating laws. Mr. Githinji for applicants cited violation of several Articles of the Constitution and seeks for interpretation of Section 26 of the Land Registration Act, 2012, specifically on when a purchaser's title at a public auction can be invalidated on account of fraud. He argued that the intended appeal to the Supreme Court, primarily revolved around the question of whether a title acquired through a lawful vesting order can be nullified by a court without first setting aside that underlying order. 19.Article 163(4) of the Constitution stipulates the criterion to be satisfied by an intended appellant in order for leave to be granted to appeal to the Supreme Court. It states that;“Appeals shall lie from the Court of Appeal to the Supreme Court- (a) as of right in any case involving the interpretation or application of this Constitution; and (b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved ” 20.Whether or not a matter is considered to be of general public importance was set out in guidelines enumerated by the Supreme Court in the case of In the Matter of Hermanus Phillipus Steyn vs Giovanni Gnecchi-Ruscone, (supra) which specified that;i.“for a case to be certified as one involving a matter of general public importance, the intended appellant must satisfy the Court that the issue to be canvassed is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;ii.where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have significant bearing on the public interest;iii.such question or questions of law must have arisen in the court or courts below, and must have been the subject of judicial determination;iv.where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;v.mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4) (b) of the Constitution;vi.the intending applicant has an obligation to identify and concisely set out the specific elements of ‘general public importance’ which he or she attributes to the matter for which certification is sought;vii.determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.” 21.The Supreme Court’s guidance in the above cited case is that matters of general public importance are those that, inter alia, raise a substantial point of law, or occasion a state of uncertainty in the law or arise from contradictory precedents, or will affect a considerable number of persons in general, or as litigants. The Supreme Court further expressed itself in the said case as follows;“Mere apprehension of injustice, or miscarriage of justice, is not a basis for certification as a matter of general public importance.” 22.Additionally, the Supreme Court reiterated this finding in Malcolm Bell - vs- Daniel Toroitich arap Moi & Another [2013] eKLR, where it held: -“A matter of general public importance must transcend the circumstances of the particular case. It is not enough that a party fears injustice in his or her cause.” 23.Applying the above criteria, we note that the gist of the applicants’ complaint is whether a title acquired through a lawful vesting order can be nullified by a court without first setting aside that underlying order. In nullifying the 1st applicant’s titles this Court held as part of its judgment as follows;“27……However, the appellant maintains that the extracted order which the 1st and 2nd respondent used to have the suit properties registered and transferred to themselves were nullities as they were not in consonance with Muchelule, J’s ruling and order. Indeed, for this reason Githua, J had on the application of the appellant recalled the extracted order and nullified it. That being the case, we are satisfied that the impugned order was incapable of being used to transfer and confer legal title of the suit properties to the two respondents....29.…….To our mind a recalled and or nullified court order or decree is treated as if it never existed. It is erased from the legal record. It is as if the court never issued it in the first place. Any actions taken pursuant to such an order are voided, and parties are generally returned to their pre-order positions. This means that judgment made, property transferred or actions taken on the now nullified order are reversed or disregarded. See Eco Bank Kenya Limited v Afrikon Limited [2017] eKLR and Florence Cherugut v Cheptum Murei Annah [2022] eKLR.31.In the circumstances of this case therefore, it follows that a recalled order loses all legal efficacy and could not lawfully underpin the issuance of fresh titles as happened in this case. A court order that is void ab initio cannot serve as the foundation for registration of a party as the proprietor of a property. In Dina Management Ltd v County Government of Mombasa & 5 Others, Pet No. E010 of 2021, the Supreme Court agreed with the decision of this Court in Munyu Maina v Hiram Gathiha Maina [2013] eKLR and reiterated that:“….where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.” 24.To qualify for certification, the appellant must demonstrate that the Court applied a wrong principle of law, acted without jurisdiction, or that the case raised substantial constitutional issues. The mere apprehension of a miscarriage of justice or disagreement with the Court's evaluation of facts is not sufficient. In our view, the Court considered all the issues raised by the 1st respondent on appeal and found they had merit. We are not persuaded that the issues raised by the applicants transcend the circumstances of this case, and have a significant bearing on public interest. 25.It is trite law that all litigation must sooner than later, come to an end and its conclusion must have a finality. A matter cannot be reopened before the Supreme Court simply because a litigant is of the view that the decision should have been different or a certain weight ought to have been given to a particular piece of evidence. It is therefore our holding that the application has not met the criteria set in Hermanus Phillipus Steyn vs Giovanni Gnecchi-Ruscone (supra). 26.Consequently, the Notice of Motion dated 2nd December 2025 fails in its entirety and is dismissed with costs to the 1st respondent only since the 2nd respondent did not oppose the application. 27.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026.G.V. ODUNGA.....................................JUDGE OF APPEALH.I. ONG’UDI.....................................JUDGE OF APPEALB. ONGAYA.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar.