[2023] KECA 1346 (KLR)

Tarabana Company Limited v Sehmi & 7 others (Civil Appeal (Application) 463 of 2019) [2023] KECA 1346 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KECA 1346 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal (Application) 463 of 2019

HA Omondi, KI Laibuta & PM Gachoka, JJA

November 10, 2023

Between

Tarabana Company Limited

Appellant

and

Harcharan Singh Sehmi

1st Respondent

Harbhashan Singh Sehmi

2nd Respondent

Jaswaran Sehmi

3rd Respondent

Rospatech Limited

4th Respondent

Chief Land Registrar, Nairobi

5th Respondent

National Land Commission

6th Respondent

Inspector General of Police

7th Respondent

Attorney General

8th Respondent

(An application for certification and leave to apply to the Supreme Court from the judgment of this Court (Asike- Makhandia, Pauline Nyamweya and Jessie Lesiit, JJ.A.) dated 8th October 2021) in Civil Appeal No. 463 of 2019 Civil Appeal 463 of 2019,

Environment & Land Case 1311 of 2014 )

Ruling

1. The applicants, Harcharan Singh Sehmi and Jaswaran Sehmi have approached this court by way of a notice of motion dated October 22, 2021 expressed to be brought under article 163(4) of the Constitution, rules 24 and 26 of the Supreme Court Rules and rule 40 of the Court of Appeal Rules.

2. The relevant prayers sought by the applicants are:a.That this honourable court be pleased to grant leave to the applicants herein to appeal the judgment of this honorable court dated October 8, 2021 to the Supreme Court as provided for under the law; andb.That this honourable court be pleased to certify That the intended appeal and proposed grounds of appeal to the supreme court arising from the judgment of this court dated October 8, 2021 raise an issue of general public importance and which transcends the circumstances of this case and with a significant public interest as such, one ripe for interrogation and determination by the Supreme Court.

3. By way of background, and to put this application into perspective, it is necessary for us to set out the facts leading to the filing of Civil Suit ELC Case No 1311 of 2014. The dispute relates to a property known as LR No 209/2759/9 (IR No 12263) situated at Ngara area within Nairobi. The 1st and 3rd respondents bought the property in 1968 and, at the time, the suit property had a term of lease of 59 years commencing October 1, 1942 to October 1, 2001. Before expiry of the lease, they applied to the director of physical planning and the director of survey for its renewal. It is stated That this did not happen as the property file in the land office went missing; and That the property was allocated to the 4th respondent on October 30, 2009, who later sold it to the appellant. Upon purchase, the appellant charged the property to Prime Bank Limited and constructed a multi-storey building.

4. Upon realizing that the lease had not been renewed but had been allocated to the 4th respondent and later sold to the appellant, the 1st, 2nd and 3rd respondents filed suit. The dispute on ownership was heard and determined by the Environment and Land Court (Bor, J) in favour of the 1st and 3rd respondents. This triggered the appeal. Upon hearing the parties, this court, differently constituted, allowed the appeal and held That the appellant was the lawful registered owner. The relevant part of the judgment read as follows:“It is clear from these provisions that a certificate of title issued by the Registrar to a purchaser of land upon a transfer, is prima facie evidence That the person named as proprietor of the land is the absolute and indefeasible owner, except where it was obtained through fraud or corrupt deal. The Appellant obtained title to the suit property after purchase from the 4th Respondent. We note That the learned trial Judge found:“The 2nd defendant’s director (appellant) confirmed that he had had no peace from the plaintiffs after acquiring the suit property as they persisted in claiming the land still belonged to them. Nevertheless, the 2nd defendant proceeded to construct a multi- storied structure on the land in dispute and charged it to a bank. A prudent person would not undertake such ventures until such time as he has confirmed That the land he acquired is not being challenged and he can therefore invest massively in That land.”

5. Aggrieved by the judgment of this court, the 1st and 3rd respondents now seek certification and leave to move to the Supreme Court on the ground That the intended appeal raises a matter of great public importance. The grounds in support of the application as contained in an affidavit sworn by Harcharan Singh Sehmi dated October 22, 2021 may be summarized as follows: That the impugned judgment raises substantial questions of public importance That transcend the interests of the parties; That the holding That the 4th respondent’s title was protected by the law in spite of the fact That procedures in the Government Land Act were not followed would validate all irregular allocations of title; That findings on section 26 of the Land Registration Act require a final determination of the Supreme Court on the question of: extension of lease and the titles that are alleged to have been acquired illegally, unprocedurally, through corrupt means and in contradiction of the property rights protected by article 40 of the Constitution; determination of whether one can be an innocent purchaser for value in a case where a title is obtained fraudulently; and whether one with a lease from the government has a legitimate interest to have the lease extended on expiry. We note that many of the other grounds are an attack on the merit of the judgment.

6. The 1st & 3rd respondents, the applicants herein, have also filed written submissions dated January 24, 2022 in support of their arguments, That the application raises questions of general public importance. The applicants have cited the following cases in support of their arguments: Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Supreme Court Application No 4 of 2022; Serah Mweru Muhu v Commissioner of Lands & 2 others [2014] eKLR; Abdul Waheed Sheikh & another v Commissioner of Lands & 3 others [2012] eKLR; Republic v National Land Commission & 2 others, exparte Grove Development Ltd Miscellaneous Judicial review application No 10 of 2014; Arthi Highway Developers Ltd v West End Butchery Ltd & 6 others (2015) eKLR; and Moses Lutomia Washiali v Zephania Ngaira Angweye & another [2018] eKLR.

7. In opposition to the application, the appellant, through its director Charles Kiri Thube, swore a replying affidavit dated December 22, 2021 and filed written submissions dated March 3, 2022 wherein it contends That: the case between the parties did not involve the interpretation of the Constitution, and That it only raises issues of private law, and That any public law nuances are merely incidental; That the application does not raise any matter of general public importance; and That the application lacks merit as the suit never raised any issues of constitutional interpretation.

8. It also cites the cases of Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR where the Supreme Court enumerated the ambits of matters of general public importance and Lawrence Mukiri v Attorney General & 4 others [2013] eKLRwhere the court illuminated on who a bona fide purchaser for value was.

9. The 8th respondent, the Attorney General has filed written submissions dated September 12, 2022. It is the position of the Attorney General that the application does not meet the required threshold for certification to the Supreme Court. Relying on the case of Sum Model Industries Ltd v Industrial & Commercial Development Corporation [2011] eKLR, the 8th respondent submits That such an application for leave should ideally be heard in the Court of Appeal, which had the advantage of assessing the facts and the legal arguments.

10. It is also argued That this application is not merited as the dispute is a private matter That was determined under section 26 of the Land Registration Act. To the 8th respondent, the issues raised by the applicant are ordinary and routinely handled in the High Court and the Court of Appeal. The 8th respondent cites the cases of Malcolm Bell v Daniel Toroitich Arap Moi [2013] eKLR; Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2007] eKLR; Olive Mugenda v Wilfred Itolondo & 11 others [2016] eKLR; Town Council of Awendo v Nelson Oduor Onyango & 11 others [2016], Misc Application No 49 of 2014; and Centre for Peace and Democracy v NGO Co-ordination Board [2020] eKLR in support of its submissions:That the issues raised are not of public importance; That all the issues raised are routinely handled by both the High Court and Court of Appeal and do not meet the required threshold for the matter to be certified for escalation to the Supreme Court.

11. We have carefully considered the notice of motion, the rival affidavits, the documents, and submissions by the parties. We note that, on the principles applicable in certification and grant of leave to appeal to the Supreme Court, the parties are walking on a well-trodden path.

12. In the oft cited case of Hermanus Phillipus Steyn vs. Giovanni Gnecchi-Ruscone (supra), the Supreme Court while laying out the principles to determine whether a matter is of general public importance, stated as follows:i.for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the court that the issue to be canvassed on appeal 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 [at earlier levels of the] 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.determination of facts in contest between parties are not, by [and of] themselves, a basis for granting certification for an appeal before the Supreme Court;viii.issues of law of repeated occurrence in the general course of litigation may, in proper context, become “matters of general public importance”, so as to be a basis for appeal to the Supreme Court;ix.questions of law that are, as a fact, or as appears from the very nature of things, set to affect considerable numbers of persons in general, or as litigants, may become “matters of general public importance”, justifying certification for final appeal in the Supreme Court;x.questions of law that are destined to continually engage the workings of the judicial organs, may become “matters of general public importance”, justifying certification for final appeal in the Supreme Court;xi.questions with a bearing on the proper conduct of the administration of justice, may become “matters of general public importance,” justifying final appeal in the Supreme Court.”

13. In the case ofMitu-Bell Welfare Society v Kenya Airports Authority Limited & 2 others, [2018] eKLR, this Court cited the Queen on the Application of Cromptom v Wiltshire Primary Care Trust[2008] EWCA in which the prerequisites for determining a matter of general public importance were further elaborated as follows:i.That the matter involves the elucidation of public law by higher courts, in addition to the interests of the parties;ii.That the matter is of importance to a general class, such as the body of tax-payers;iii.That the matter touches on a department of State, or the State itself, in relation to policies That are of general application.”

14. We now turn to the elephant in the room, namely what issues of general public importance are raised by the applicants that deserve consideration by the Supreme Court. The applicants have framed the following as issues of general public importance that deserve hearing and determination by the Supreme Court:a.What is the duty of the government in the processing of applications for extension of lease, and whether frustrating the legitimate expectation of a holder of the expiring lease invalidates the certificate of title issued to a 3rd party under section 26(b) of the Registered Land Act?b.The court having found that the 4th respondent did not follow the due process in obtaining the title, can the concept of absolute and indefeasible title be applied in his favour as the court did?c.When holding that the appellant was an innocent purchaser for value, did the Court apply the correct principles with regard to section 26 of the Registered Land Act? Put differently, can section 26 of the Registered Land Act be used as a defence by a party who has obtained a title irregularly, illegally, or through a corrupt scheme?d.Whether the judgment, if left to stand, will have a serious impact that transcends the applicants as it will validate all irregular allocations and acquisitions of titles.e.That there are conflicting decisions on the applicability of the Torrens systems and the concept of indefeasibility of titles as cited in its written submissions.

15. Having considered the issues raised, we find that indeed, there is uncertainty in the law with regard to the concept of the innocent purchaser for value, and to the indefeasibility of titles as is apparent in the various decisions cited by the parties. This court is alive to the fact that when this ruling was pending, the Supreme Court pronounced itself on the principle of innocent purchaser for value, where the land is not available for allocation in the first place. See Dina Management Ltd v County Government of Mombasa and others, Supreme Court Petition No 8(E010) of 2021. We further note That the applicants have raised important issues That go beyond their case namely; the question of legitimate expectation in the renewal of leases; whether an irregular allocation can create a genuine title; and whether an innocent purchaser’s title can be challenged.

16. In our considered view, these questions are not idle. They go beyond the interest of the applicants. We also form the view That determination of those issues by the Supreme Court would be of public good, as they transcend the dispute between the applicants and the respondents. It is therefore our holding That the application has met the test in the now-famous Hermanus Steyn case.

17. Accordingly, we hereby grant leave to the applicants to file the intended appeal in the Supreme Court within fourteen (14) days of the date hereof. Parties do bear their own costs of this application.

DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. H. A. OMONDI.........................................JUDGE OF APPEALDR. K. I. LAIBUTA.........................................JUDGE OF APPEALM. GACHOKA CIArb, FCIArb........................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR