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Citation
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Judgment date
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| March 2018 |
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Wrong citation of the enabling provision rendered the application incompetent and justified striking it out with costs.
Civil Procedure – preliminary objections – wrong or non‑citation of enabling provision – application rendered incompetent. Civil Procedure – affidavit verification – failure to state place/date under Order VI r.15(3). Procedural law – distinction between technical irregularity and fundamental defect going to the root of the matter.
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29 March 2018 |
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A purchaser cannot acquire valid title when the vendor lacked authority to dispose of clan/family land.
Land law – clan/family land – disposal without family consent – vendor lacking title cannot pass title; nemo dat quod non habet; appellate review of tribunal's evaluation of evidence.
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23 March 2018 |
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An application for revision is premature and incompetent if it seeks to challenge an interlocutory order; such applications are struck out with costs.
Civil procedure – Revision under section 43 of the Land Disputes Courts Act – whether interlocutory orders are subject to revision or appeal – interlocutory orders not amenable to revision. Limitation – Law of Limitation Act, First Schedule item 21 – sixty (60) day period for instituting revision applications. Procedural compliance – requirement to observe Civil Procedure Code section 79(2) when instituting proceedings.
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23 March 2018 |
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Allocation was lawful where the appellant had been compensated and failed to prove refund, so appeal against ownership was dismissed.
Land law – ownership dispute after survey and allocation; Land Acquisition Act s.11(1) – requirement and effect of compensation; ministerial directives regarding occupants and refund of compensation; curable misnomer in judgment/decree; limitation (Item 22, First Schedule to Limitation Act).
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23 March 2018 |
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Application for extension of time dismissed for wrong statutory citation and failure to show sufficient cause.
Procedure – Extension of time – Whether section 14(1) & (2) Law of Limitation Act applies to appeals from Ward Tribunals – Wrong statutory citation renders application incompetent. Civil procedure – Extension of time – Requirement to show sufficient cause – family illness, delay in obtaining judgment and burial duties held insufficient. Appeals from Ward Tribunal – impugned decree and judgment not required as attachments when seeking extension.
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23 March 2018 |
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Representative suit application struck out because affidavit failed to identify or annex names and number of persons to be represented.
Civil procedure – Representative suits – Order I Rule 8(1) CPC – leave to sue as representative – mandatory requirement to disclose and annex the names and number of persons to be represented – inability to cure omission by Order XIII Rule 1 notice at leave stage – application struck out for non‑compliance.
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22 March 2018 |
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Incorrect naming of the defendant renders the suit incompetent and cannot be cured by amendment.
Civil procedure — Parties — Correct naming of defendant — Misnaming a party is a fundamental irregularity and renders proceedings incompetent; amendment and purposive interpretation (Article 107A) will not cure a defect going to the root.
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21 March 2018 |
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A non-administrator claimant lacked locus standi to sue over deceased's land without probate/administration proof; suit dismissed.
Land law – ownership dispute over deceased’s plot – locus standi of non-administrator claimant – requirement to produce probate/administration documents (s.107(1) Probate & Administration of Estates Act) – inability to determine title or bona fide purchaser questions where plaintiff lacks standing.
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20 March 2018 |
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Surviving spouse confirmed owner; occupant lacks title but may collect limited rent for livelihood.
Land law – ownership of matrimonial property – surviving spouse’s locus standi to sue; evidentiary value of sale agreements; licence/tenancy versus ownership; equitable allowance for continued rent collection by occupant.
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16 March 2018 |
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Leave to appeal granted on whether the trial court erred by nullifying a title deed instead of awarding compensation.
Land law – leave to appeal under section 47(1) LDCA – discretion and requirements for leave. Appealability – whether nullification of a title deed versus awarding compensation constitutes a question of law fit for appeal. Procedure – substituted service by publication and hearing ex parte where respondents fail to appear.
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16 March 2018 |
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Appellate and trial tribunals' procedural defects, including failure to record assessors' attendance and denial of cross‑examination, warranted quashing and retrial.
Land Disputes Courts Act — requirement to sit with two assessors and to state reasons if differing from assessors' opinion — procedural fairness — audi alteram partem — failure to record locus in quo visit — incurable procedural irregularities — quashing and remittal for retrial.
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16 March 2018 |
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Appeal dismissed: tribunal gave reasons and tenant breached lease by failing to pay rent on time.
Land law – landlord and tenant – breach of lease by failure to pay rent on time; admissibility and sufficiency of evidence of mobile money payments (MPESA/Tigo Pesa); appellate review of tribunal reasons and findings.
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16 March 2018 |
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A plaint omitting the subject-matter value fails to establish jurisdiction and will be rejected.
Civil Procedure – Order VII R.1(f) & (i) CPC – plaint must disclose facts establishing territorial and pecuniary jurisdiction; statement of value of subject matter mandatory where case admits; omission renders plaint incompetent. Preliminary objection on jurisdiction may be raised in submissions.
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14 March 2018 |
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An auction purchaser's prior lawful purchase prevails; subsequent sale and registration by a vendor without title is void.
Land law – mortgagee’s public auction sale – transfer/registration – nemo dat quod non habet – validity of subsequent sale and registration – bona fide purchaser – trespass and damages for wrongful occupation.
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12 March 2018 |
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Occupants who fail to prove title to land inside a forest reserve are trespassers and not entitled to compensation after eviction.
Land law – Forest reserve – Occupation within Pugu Forest Reserve – Trespass; Burden of proof – claimant must prove title; Representative suits – each plaintiff must prove individual claim; Compensation – trespassers not entitled to damages for eviction/demolition.
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9 March 2018 |
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A prior valid installment sale bars the seller from validly selling the same land to another buyer.
Land law – competing sale agreements; installment sale agreement; payment in instalments; estoppel against seller; breach of contract; effect of non-joinder of original seller.
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9 March 2018 |
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Appellate court found the appellant’s sale agreement valid, payment proved, and trial tribunal’s procedural irregularities rendered its decision unsafe.
Land law – Sale agreement – validity of written agreement (Exhibit D1) – alleged forgery – incomplete police investigation – procedural fairness: admission of document without opportunity to object and hearing in absence of advocate – failure to call critical witness (Ward Executive Officer) – adverse inference – ownership declared on proof of payment.
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9 March 2018 |
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Court set aside mortgage sale for irregularity and conflict of interest despite proven outstanding indebtedness.
Land law – mortgagee’s power of sale; requirements of notice under Land Act (ss.125/127/131); auction irregularity and conflict of interest; purchaser who is bank officer; setting aside sale for fraud/irregularity; lawful set‑off of account withdrawals for interest.
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9 March 2018 |
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The respondent's counterclaim failed due to inadequate proof of sale and discrepancies in party identity.
Probate law – power of an administrator to sell estate property (s.101) – Burden of proof in contested probate sales (Evidence Act s.110) – Requirement to call material witnesses – Importance of correct party identity in title documents.
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2 March 2018 |