REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Koome; CJ & P, Mwilu; DCJ & VP, Ibrahim, Wanjala, & Lenaola SCJJ)

PETITION NO. E014 OF 2023

-BETWEEN-

ASHMI INVESTMENT LIMITED …………………………………….. APPELLANT

-AND-

RIAKINA LIMITED ………………………………………………… 1ST RESPONDENT

NATIONAL LAND COMMISSION …………………………… 2ND RESPONDENT
_____________________________________________________
Being an appeal from the Ruling of the Court of Appeal at Nairobi
(Okwengu, Sichale & Laibuta JJ.A) dated 14th April 2023 in Civil Appeal
Application No. 384 of 2022
_________________________________________________

Representation:

Prof. Tom Ojienda (SC) and Ms. Misiati for the Appellant
(Prof. Tom Ojienda & Associates)

Mr. Isaac Aloo for the 1st Respondent

(A.I. Onyango & Co. Advocates)

No appearance for the 2nd Respondent

JUDGMENT OF THE COURT

A. INTRODUCTION

Petition No. E014 of 2023 Page 1 of 23

[1] The appellant, Ashmi Investment Limited, vide its Petition of Appeal dated
4th May, 2023 and filed on 19th May, 2023 challenges the ruling of the Court of
Appeal made on 14th April 2023. In the ruling, the Court of Appeal declined to
review and set aside its judgment and orders made on 19th November, 2021 in
Civil Appeal No. 384 of 2019, affirming the judgment of the Environment
and Land Court (ELC) in Civil Suit ELC No. 646 of 2014. The net effect of
the impugned decision is that the appellant’s survey deed plan and resultant
title to the suit properties - LR Nos. 29957 and 29955 were cancelled. The Court
of Appeal also agreed with the learned trial Judge of the ELC that the property
was not available for allotment to the appellant and that the titles processed in
favour of the appellant could not stand, the same having been issued during the
pendency of the suit.

[2] The appeal invokes this Court’s jurisdiction under Article 163 (4) (a) of the
Constitution, Section 15 (2) of the Supreme Court Act No. 7 of 2011, and Rules
3 (5), 31 & 32 of the Supreme Court Rules 2020.

[3] The 1st respondent raised a preliminary objection, inter alia, challenging
this Court’s jurisdiction to hear the appeal as of right under the provisions of
section 163(4)(a) of the Constitution. In the Ruling dated 4th August 2023, the
Court addressing itself on the merits of the preliminary objection, partly
allowed the objection and restricted the appeal to the following issues:

(i) Whether the applicant was a bona fide owner of the suit properties
within the provisions of Article 40 of the Constitution; and
(ii) Whether the Court of Appeal misapplied the doctrine of lis pendens
thereby denying the applicant a right to property.

B. BACKGROUND
[4] The gist of the dispute is that on 28th July 1998, both the appellant and the
1st respondent were allotted Unsurveyed Industrial Plot ‘D’ off Mombasa Road
(hereinafter “the Suit Property”) by the Commissioner of Lands.

[5] According to the appellant, by the Letters of Allotment dated 28th July 1998
referenced 51776/XVI/159 and 51776/XVI/158, it was allotted Unsurveyed
Petition No. E014 of 2023 Page 2 of 23
Industrial Plot ‘C’ and Unsurveyed Industrial Plot ‘D’ respectively for a term of
99 years from 1st August 1998. It proceeded to take up possession, paid the
prerequisite fees in respect of ground rent, rates, standard premium, and survey
fees on 20th February 2013 as evidenced by copies of Department of Land Fee
Receipts Nos. 3195262 and 3195263, and sought approvals from the pertinent
government offices. That thereafter, the Director of Surveys caused Plots ‘C’ and
‘D’ to be surveyed and given L.R. Nos. 29955 (deed plan number 358614) and
29957 (deed plan number 358616) respectively (hereinafter “the Properties”).

[6] The appellant alleged that due to the dispute between the National Land
Commission and the Ministry of Land Housing and Urban Development at the
time, no land officer had been appointed to sign new titles and as such the titles
were pending registration and issuance as at the time of institution of the suit
before the ELC. That on 19th May 2014, the 1st respondent invaded the Suit
Property in an attempt to forcefully take possession of the same prompting the
appellant to institute a suit at the Environment and Land Court together with
an application for interim relief.

C. LITIGATION BACKGROUND

i. Proceedings at the Environment and Land Court

[7] The appellant lodged Civil Suit ELC No. 646 of 2014 on 23rd May 2013
seeking to restrain the 1st respondent from evicting and or trespassing,
alienating, leasing, selling, charging or otherwise interfering with the
appellant’s possession of the L.R. Nos. 29955 and 29957. Also, it sought a
declaration that it was the bona fide owner of the Properties.

[8] Contemporaneously, the appellant filed an application for conservatory

relief as against the invasion by the 1st respondent. The court, ex parte in the
first instance and upon inter partes hearing granted a temporary injunction
restraining the 1st respondent from evicting and or trespassing, alienating,
leasing, selling, charging and or committing acts or otherwise from interfering
with the appellant’s possession of LR Nos. 29955 and 29957 pending the
hearing and determination of the suit. The ELC on a prima facie case basis
Petition No. E014 of 2023 Page 3 of 23
found that the appellant had demonstrated that he was allotted the Suit
Property on 28th July 1998; was unable to obtain title due to dispute and
disagreement between 2nd respondent and Cabinet Secretary, Ministry of Land
Housing and Urban Development; had shown that it had been paying rates at
the Nairobi City Council (as it then was); and the property had not encroached
the Kenya Airports Authority. On irreparable harm; the ELC found that being a
company, the appellant’s asset stood to be damaged if the court did not protect
its interests.

[9] In response to the suit, the 1st respondent entered defense and filed a
counter claim. It argued that on the same date, 28th July 1998, it was also
allotted Unsurveyed Plot No. ‘D’ off Mombasa Road, the Suit Property, through
the Letter of Allotment referenced 51176/XVI/154. Subsequently, Plot File No.
210323 was opened; and it accepted the offer on 4th August, 1998. That upon
realizing the Suit Property size was smaller than indicated, it unsuccessfully
attempted to negotiate payment of a reduced sum.

[10] That the 1st respondent then proceeded to pay the required fees of
Kshs. 20,000/- on 3rd April 2001 and a further Kshs. 240, 563/- on 15th October
2001, and was issued with Department of Land Fee Receipts Nos. E773014 and
E774210 respectively. Thereafter, it took possession of the Suit Property,
erected a fence around it, and commenced processing of the title with
documents prepared and sent to the Commissioner of Lands for execution of
the grant. That the Director of Surveys approved the Deed Plan for the Suit
Property on 25th August 2003, as Deed Plan No. 246792 recorded in Folio
Register No. 285/11, and assigned it L. R. No. 24091 which was then submitted
to the Ministry of Lands for processing of the grant.

[11] The 1st respondent contended that the Director of Surveys caused another
survey under Folio Register No. 391/24 to be undertaken resulting in L.R. Nos.
29955, 29956 and 29557 (Deed Plans No. 358614–16). It raised complaints
through its letters dated 24th March 2014 and 20th September 2015 but the

Petition No. E014 of 2023 Page 4 of 23

Director declined to correct the fraudulent position, necessitating it to seek the
following orders in its counterclaim:

i. The Plaintiff/1st Defendant (appellant) survey number Folio Register

No. 391/24, (computation number 64318 - L.R. Numbers 29955,
29956, and 29957- Deed Plan Numbers 358614, 358615 and 358616)
by the Director of Surveys be declared unlawful and fraudulent and
be cancelled and that the 1st Defendant/Plaintiff’s survey Folio
Register Number 285/11 (computation number 41474 - L.R. Number
24091 - Deed Plan No.246792) be declared as legal and the Director
of Survey should accordingly amend the survey record.

ii. The Chief Land Registrar be ordered to issue the 1st Defendant’s
(respondent’s) title for plot file number 210323; Folio Register
Number 285/11, computation number 41474 - L.R No. 24091- Deed
Plan No.246792.

iii. Costs and interest.

[12] Conversely, the 2nd respondent in its statement of defense professed that
since the Suit Properties were unsurveyed, the Director of Physical Planning
prepared a Part Development Plan referenced 42.14.98.03A on 11th June 1998,
which was approved by the Commissioner of Lands on 25th June 1998, before
effecting the allocations to the appellant. The 2nd respondent affirmed that the
appellant, who was merely an allottee of the Suit Properties, accepted the offers
of allotment on 20th July 2013. Then, the Director of Surveys, in its letter dated
10th December 2013, caused Unsurveyed Industrial Plot ‘C’ and Unsurveyed
Industrial Plot ‘D’ to be surveyed and assigned Land Reference Nos. 29955 and
29957 respectively. That this action was taken in view of the fact that there was
no objection from the defunct Nairobi City Council in allocation of the
properties, and the Kenya Airport Authority having confirmed that the
properties did not encroach on airport land given their proximity to Jomo
Kenyatta International Airport.

Petition No. E014 of 2023 Page 5 of 23

[13] In the premises, the 2nd respondent argued that it was satisfied that the
allocations to the appellant were lawful, based on recommendations and
approvals from the aforementioned offices, titles for LR Nos. 29955 and 29957
in favour of the appellant were prepared, awaiting execution and registration.

[14] Upon hearing the parties, the court delimited four issues for
determination: (i) whether there was fraud in the allocation of the Suit
Property to the appellant; (ii) who was the bona fide allottee of the Suit
Property; (iii) who is in possession of the Suit Property; and (iv) Who should
pay the costs of this suit.

[15] In a judgment dated 25th September 2017, the Environment and Land
Court (Bor J.) dismissed the appellant’s suit and allowed the 1st respondent’s
counterclaim. Before addressing the issues before it, the court observed that the
appellant had gone ahead to process the title deed in its name, which was issued
on 4th March 2015, while the suit was pending. This, the court found, was
intended to defeat the rights of the 1st respondent and its counterclaim as the
appellant ought not to have proceeded to process the title.

[16] Regarding who was the bona fide allottee, the court noted that since File
Numbers at the Lands Office are assigned sequentially, it was evident that the
1st respondent’s File No. 210323 was opened before the appellant’s File No.
242742. Moreover, the appellant’s Letter of Allotment had the reference
number 51776/XVI/158 while the 1st respondent’s Letter of Allotment bore
reference number 51776/XVI/154.

[17] Additionally, the appellant’s Letter of Allotment stipulated a payment of

Kshs.258,630/- payable within 30 days; however, according to the documents
presented, the appellant only paid Kshs.174,750/- on 20th February, 2013. No
explanation was provided neither for the appellant’s underpayment, amounting
to defrauding the government of revenue, nor for the delay of almost 15 years in
making payment. Furthermore, it appeared that Land Reference Nos. 29955 –
29957 were issued subsequent to Land Reference No.24091. Therefore, the
Learned Judge found that by 2013, when the appellant accepted the offer, the

Petition No. E014 of 2023 Page 6 of 23

Suit Property was no longer available, as it had already been allotted to the 1st
respondent by the Commissioner of Lands.

[18] As for actual possession of the Suit Property, the court noted that upon
payment of the sum demanded in the Letter of Allotment, the 1st respondent
took possession of the Suit Property and erected a fence around it. The court
acknowledged that while the 1st respondent provided photographs of the Suit
Property, there was no evidence to suggest that the appellant had occupied it.
Consequently, the court concluded that the 1st respondent had demonstrated on
a balance of probabilities that it was in possession of the Suit Property.

[19] On whether there was fraud in allocating the Suit Property to the
appellant, the Learned Judge recognized that the 2nd respondent participated
in getting the title over the Suit Property issued to the appellant by writing to
the Director of Surveys on 2nd November 2013 underscoring irregularities in
preparation of Deed Plans for Unsurveyed Industrial Plots B, C and D off
Mombasa Road. The Learned Judge noted that the letter accentuated that
despite a grant for the Suit Property, L.R. No. 24019 under Deed Plan 246792,
being in the process of registration, a new Deed Plan No. 358614 had been
created for L.R. No.29955, overlapping on the Suit Property; which
contradicted the position taken by the 2nd respondent’s witness, one Silas
Kiogora Mburugu, Land Officer at the 2nd respondent who testified that he was
not aware of any other allocation of the Suit Property from the records that were
available.

[20] Further, that File No. 210323 which was opened with regard to the Suit
Property allotted to the 1st respondent, vanished after the Suit Property was
surveyed as Folio Register No. 285/11 and Deed Plan No. 246792 processed and
given L. R. No. 24091. Consequently, the learned Judge concluded that the 1st
respondent’s Deed Plan had been prepared prior to the appellant’s and to the
creation of Deed Plan No. 358614, which formed the basis for issuing title to the
appellant for L.R. No. 29955 on 4th March 2015.

Petition No. E014 of 2023 Page 7 of 23

[21] Relying on Regulation 109 of the Survey Regulations of 1994 which
mandates the Director of Surveys to cancel any Deed Plan he withdraws, it was
held that there was no evidence to show that the 1st respondent’s Deed Plan
No.246792, prepared on 4th March 2003, was withdrawn or cancelled by the
Director. By the same token, when the Director cancels survey plans, he is
required to notify the registered owner, surveyor who did the work, and the
Land Registrar of the cancellation pursuant to Section 33 of the Survey Act. In
that case, the court held that no evidence was adduced to show that either the
1st respondent or the surveyor who undertook the 1st respondent’s survey was
notified of the cancellation of the 1st respondent’s Deed Plan. Consequently, the
court dismissed the appellant’s suit, allowed the 1st respondent’s counterclaim,
and granted prayers (i), (ii) and (iii) of the counterclaim.

[22] Discontented, the 2nd respondent filed a Notice of Motion, supported by

the affidavit of Zachariah Ndege, Chief Land Administration Officer at the 2nd
respondent’s office seeking a review of the judgment. It was predicated on the
averments that the 1st respondent did not pay an amount of Kshs. 240,563/- as
contained in Receipt No. E774210 of 15th October 2001; as the receipt was not
genuine as confirmed by the Ministry of Lands and Physical Planning on 16th
November 2017 on account of the said receipt not appearing in the Ministry’s
analysis book of 1st November 2001; therefore, the 1st respondent did not
complete payment for the allocation of the Suit Property and has yet to do so;
thus, the court failed to consider that the Suit Property had been registered in
favour of the appellant, and a certificate of lease for L. R. No. 29957, formerly
Plot D, issued on 4th March 2015.

[23] Around the same time, the appellant filed an application for review of the
judgment. Its main contention was that in a letter dated 29th December 2017
from the Registrar of Companies, the details of the 1st respondent were
unavailable. Thus, the appellant argued that the 1st respondent does not exist
and could not therefore own property as found in the judgment. This was
rebutted by the respondent who adduced a copy of its certificate of registration
issued by the Companies Registry.

Petition No. E014 of 2023 Page 8 of 23

[24] In a Ruling dated 13 November 2018, the Environment and Land Court
(Bor J.) dismissed the application for review with costs. It held that: the 2nd
respondent’s letter of 2nd October 2017 demonstrated that the 2nd respondent
only sought to confirm whether the receipt in dispute was genuine after the
court had entered judgment; and it was not demonstrated to the court that the
2nd respondent did not have access to the information at the time the case was
heard or that it could not be produced then. It is instructive to note that no
appeal has been preferred against this Ruling.

ii. Proceedings at the Court of Appeal

[25] Aggrieved by the Judgment of the ELC, the appellant moved the Court of
Appeal in Civil Appeal No. 384 of 2019 on eight (8) grounds of appeal out
of which the court identified the following as the salient grounds before it: that
the learned judge:

1. Erred in failing to hold that the appellant is the bona fide owner of the
suit properties;
2. Failed to appreciate the evidence adduced at the trial to the effect that
the suit properties were allotted to the appellant vide letters of
allotment Ref: 51776/XVI/158 and 51776/XVI/159 respectively;
3. Failed to appreciate that the suit properties had been allocated to the
appellant and the same were not available for alienation, allocation or
transfer to any other person;
4. Dismissed the appellant’s suit despite strong evidence tendered by the
appellant;
5. Erred in dismissing the appellant’s suit to the effect of allowing the 1 st
respondent to unjustly enrich itself at the appellant’s expense; and
6. Failed to consider all the issues raised by the appellant in its written
submissions.

[26] Upon considering the record of appeal, grounds of appeal and written
submissions, the Court of Appeal delineated the following as issues for
determination:

Petition No. E014 of 2023 Page 9 of 23

 (i) What was the legal effect of double allocation of the Suit Properties?
(ii) Between the appellant and the 1st respondent, who was the first in
time to accept the offer of allotment and pay the requisite fees, and
to what effect?
(iii) After acceptance of the offer of allotment and payment in full of the
requisite fees and impositions by either the appellant or the 1st
respondent, were the suit properties available for allocation and
transfer to the other?
(iv) Who is the rightful allottee and owner of the suit properties?
(v) Who bears the costs of this appeal?

[27] In dismissing the appeal, the learned Judges of Appeal, vide judgment
dated 19th November 2021, held that it was a clear case of double allotment,
being that both the appellant and 1st respondent were issued with Letters of
Allotment dated 28th July 1998 from the office of the Commissioner of Lands in
respect of the same Unsurveyed Plot ‘D’ from which Suit Properties known as
L.R. Nos.29955 and 29957, were derived. That the offer remained open for
acceptance by either party and, being conditional, acceptance only took legal
effect upon full payment of the requisite fees and impositions, without which
the Properties would not have been vested on either party.

[28] On who between the appellant and the 1st respondent, was the first in
time to accept the offer of allotment and pay the requisite fees, the Court of
Appeal held that indisputably, the 1st respondent was the first in time to pay the
requisite fees and impositions. For that reason, it was entitled to the allocation
and registration of the properties in its favour. Subsequently, the properties
were no longer available for allotment or allocation to the appellant. This
determination answered the second and third issues.

[29] The Court of Appeal agreed with the ELC’s finding that neither party was
lawfully entitled to deal with the properties while the suit was pending. The
court deemed the appellant’s attempt to alienate the properties by paying the
requisite fees and impositions to facilitate transfer of the title documents as

Petition No. E014 of 2023 Page 10 of 23

unlawful and fraudulent. It concurred with the trial judge that the appellant
ought not to have processed the title documents while a suit was pending in the
trial court. Because of this, it determined that the certificates of title issued to
the appellant in respect of L.R. Nos. 29955 and 29957, being the derivatives of
Plot ‘D’, could only be presumed to have been irregularly obtained through an
unlawful scheme.

[30] In the end, the court agreed with the trial court’s finding that by the year
2013 when the appellant paid for the requisite fees for Unsurveyed Plot “D”, it
was no longer available because it had already been allotted by the
Commissioner of Lands to the 1st respondent, who had paid for it, taken
possession, and was in the process of procuring a certificate of title over it.

[31] The appellant, dissatisfied with the decision, filed a Notice of Motion
application seeking to review and vary/set aside the judgment. The application
was founded on fourteen (14) grounds, which the court considered as an
argumentative restatement of its case in the ELC and in its appeal, except for:
an error apparent on the face of the record and sufficient reason for review; and
the applicability of the doctrine of lis pendens in the matter.

[32] In the Ruling dated 14th April 2023, the Court of Appeal (Okwengu,
Sichale & Laibuta JJ.A) held that none of the grounds raised disclosed errors of
law that had occasioned real injustice or failure or a miscarriage of justice to the
appellant’s prejudice; or that the appellant made a case for review to promote
public interest and enhance public confidence in the rule of law; consequently,
the Court of Appeal held that the application lacked merit and failed to
demonstrate that the appellant’s case fell within the instances that call for
review as enunciated in the case of Jasbir Singh Rai & 3 Others v
Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012; [2013] eKLR.

D. PROCEEDINGS BEFORE THE SUPREME COURT

[33] Undeterred, the appellant moved to this Court, invoking its jurisdiction
under Article 163 (4) (a) of the Constitution, section 15 (2) of the Supreme Court
Act No. 7 of 2011, Rules 3 (5), 31 & 32 of the Supreme Court Rules 2020. The
Petition No. E014 of 2023 Page 11 of 23
appeal is premised on seven (7) grounds, faulting the learned Judges of the
Court of Appeal for:

i. Upholding the declaration of the appellant’s survey number folio

register number 391/24 (Computation number 64318 L.R. Nos.
29955, 29956, 29957 and Deed Plan Nos. 358614, 358615 and
358616) as unlawful and fraudulent and cancellation of the same,
that was made on 25th September 2017, without the 1st respondent
presenting any evidence, documentary or oral to strictly prove the
allegations of fraud to the required standard, thus summarily
infringing upon the appellant’s right under Article 40 of the
Constitution.

ii. Upholding its judgment that inferred fraud on the part of the
appellant due to the alleged violation of the doctrine of lis pendens
despite no evidence being led as to the alleged fraud and the 2nd
respondent confirming that issuance of the Certificate of Titles to the
appellant, during the pendency of the trial suit was occasioned by a
jurisdiction dispute between the 2nd respondent and the Ministry of
Lands and Physical Planning, thus summarily infringing upon the
appellant’s right to property under Article 40 of the Constitution.

iii. Upholding its judgment of 19th November 2021 despite the 2nd
respondent affirming that the appellant was the only allottee of the
suit property, hence the 1st respondent had no claim over the same
whatsoever, in effect cancelling the appellant’s title, in violation of its
right to property under Article 40 of the Constitution.

iv. By making a fundamental factual error by upholding its decision

that the 1st respondent was the first in time to pay the requisite fees,
hence it was entitled to allocation of the suit properties when in fact,
the court had completely overlooked the affidavit sworn by
Zachariah Ndege who confirmed that the 1st respondent’s alleged
receipt of payment for the allotment of the suit property was not

Petition No. E014 of 2023 Page 12 of 23

 reflected in the Ministry of Lands analysis book of 15th October 2001,
thus cancelling the appellant’s legitimate title to the suit property on
the basis of a disowned receipt in violation of the appellant’s right to
property under Article 40 of the Constitution.

v. By making a fundamental factual error by upholding the ELC’s

decision cancelling the appellant’s legitimate title to the suit property
despite the 2nd respondent affirming that the appellant was allotted
the Suit Property, that the appellant accepted the allotment, that the
Kenya Airports Authority confirmed that the suit property was not
encroaching on its property, that the Director of Surveys confirmed
preparation of the Part Development Plan, and that all approvals
from government agencies confirmed the appellant to be the proper
allottee; thus violating the appellant’s right to property.

vi. By usurping the mandate of the National Land Commission and the
Chief Land Registrar in so far as determining which land documents
are legitimate and which are not, thus anchoring its judgment and
Ruling solely on the 1st respondent’s unfounded allegations of fraud
against the appellant, the Director of Surveys and the 2nd respondent,
thus cancelling the appellant’s legitimate title, in violation of its right
to property.

vii. Upholding its decision to affirm the ELC’s judgment of 25th

September 2017 on the basis that the appellant violated the doctrine
of lis pendens, by receiving the Certificate of Title to the suit property
from the 2nd respondent, when the latter had confirmed and asserted
that the process of registration of the appellant’s interest had begun
in February 2013 well before the civil suit was instituted and when
only execution and registration of the title was pending, thus
inferring fraud where there was none to the disadvantage of the
appellant, and in effect cancelling its legitimate interest, in violation
of its right to property.

Petition No. E014 of 2023 Page 13 of 23

[34] In the result, the appellant seeks the following reliefs:

1. The petition of appeal be allowed;

2. The Judgment and order of the Court of Appeal (Okwengu, Sichale

and Laibuta, JJA) dated 19th November 2021, the Ruling and
Order of the Court of Appeal dated 14th April 2023, and the
Judgment and Order of Honourable Justice K. Bor dated 25th
September 2017 be set aside in entirety;

3. This Honourable Court be pleased to issue a permanent injunction

restraining the 1st respondent, its agents, members, servants,
employees and/or representatives from entering, taking
possession of, and in any other manner interfering with the
appellant’s quiet possession of the suit properties LR Nos. 29955
and 29957;

4. Costs of this petition be provided for;

5. Any other or further relief that this Court may deem fit to grant.

[35] The 1st respondent, in response, filed a notice of preliminary objection

dated 30th May 2023 and filed on 13th June 2023 challenging the Court’s
jurisdiction. This Court addressed it in the Ruling dated 4th August 2023, which
partly succeeded in restricting the appeal to two questions as indicated prior.
Following this, none of the respondents filed their responses despite being
served with this Court’s directions, nor did they appear before Court on the date
of hearing despite being duly electronically served with the hearing notice on
3rd January 2024 and a return of service filed on 25th January, 2024 by the
Court’s process server. We note from the record that it is the same mode of
service that was deployed previously in serving the directions made by the Hon.
Deputy Registrar as a result of which Counsel appeared on behalf of the 1st
respondent on 5th June 2023 before the Hon. Deputy Registrar.

Petition No. E014 of 2023 Page 14 of 23

E. PARTIES’ RESPECTIVE CASES

i. Appellant’s Case

[36] The appellant relies on its submissions dated 29th August 2023 and filed
on 30th August, 2023 in support of its petition of appeal. It addresses the two
defined issues identified by the Court.

[37] On bona fide ownership of the Suit Property under Article 40, the
appellant submits that this question rests on whether or not the allotment
process was lawful. To that end, the appellant affirms that it followed the laid
down process of allocation to the letter. That its allotment was confirmed not
only by the 2nd respondent but also by the Director of Surveys, Nairobi City
County, Kenya Airports Authority, and the Physical Planning Department.

[38] In contrast, the appellant argues that the 1st respondent did not fulfill the
allotment requirements, as it failed to pay the due allotment fees. Moreover, all
the relevant government offices have denounced any alleged allocation to it.
Further, that through the affidavit sworn by Zacharia Ndege, the 2nd respondent
affirmed that the 1st respondent did not make any payments to it; hence, no
allocation was made to the 1st respondent. The appellant propounds that its
proprietary rights under Article 40 of the Constitution have consistently been
affirmed by the 2nd respondent, the Chief Land Registrar, the Director of
Surveys, and all other necessary stakeholders.

[39] The appellant further submits that when confusion ensues regarding the
validity of land records, parties, and indeed the court, must revert to the
custodians of these records to affirm the true position. To bolster this argument,
the appellant relies on the case of Solomon Omwenga Omache & Anor v
Zachary O. Ayieko & 2 Others; [2016] eKLR as cited by the Court of Appeal
in Philemon L. Wambia v Gaitano Lusitsa Mukofu & 2 Others; [2019]
eKLR which emphasized the court’s duty to uphold the sanctity of the records
at the Lands Office. Accordingly, the appellant implores the Court to allow it’s
Petition of Appeal not only because it fulfilled all the requirements of the

Petition No. E014 of 2023 Page 15 of 23

allotment but also because its title is backed by official records whose integrity
and accuracy have been affirmed by the 2nd respondent.

[40] On the second issue, whether the Court of Appeal misapplied the doctrine
of lis pendens thereby denying the appellant’s right to property, the appellant
urges that the doctrine of lis pendens applies only to actions taken after the suit
has been instituted, specifically with the sole intention of stealing a match from
the opposing litigant. This position the appellant asserts was espoused by the
Indian Supreme Court in G.T. Girish v Y. Subba Raju, Civil Appeal No. 380
of 2022, and by the Court of Appeal in Dhanjal Investments Limited v
Shabaha Investment Limited; CA No.80 of 2019; (2022) KECA 366 (KLR).

[41] The appellant submits that the issuance of the titles to the Suit Property
was the culmination of the registration process that had begun in 2013, as
confirmed by 2nd respondent in the superior courts. The appellant underscores
that it neither dealt with nor transferred the Suit Property after instituting and
during the pendency of the suit. It affirms that the only reason the requisite
registration documents were not signed by 2013 was due to the jurisdictional
conflict between the 2nd respondent and the Ministry of Lands and Physical
Planning, which halted a number of land transactions. Therefore, the appellant
reiterates that there was no violation of the doctrine of lis pendens. To that
extent, the appellant faults the Court of Appeal for misinterpreting the doctrine,
resulting in an unfair infringement of its right to property under Article 40 of
the Constitution. Accordingly, the appellant implores the Court to allow the
appeal.

F. ANALYSIS AND DETERMINATION

[42] It is this Court’s practice that when an appeal is instituted, under Article
163(4)(a) of the Constitution, as of right, in any case involving the interpretation
or application of the Constitution, we must of necessity satisfy ourselves of our
jurisdiction to hear and determine the matter, whether an objection has been
raised or not.

Petition No. E014 of 2023 Page 16 of 23

[43] As earlier stated, this Court’s Ruling dated and delivered on 4th August
2023, addressed the challenge to its jurisdiction, and framed the following
issues:

(i) Whether the applicant was a bona fide owner of the suit properties
within the provisions of Article 40 of the Constitution; and

(ii) Whether the Court of Appeal misapplied the doctrine of lis pendens
and thereby denying the applicant a right to property.

[44] In arriving at the decision in the said ruling, the Court appreciated that
the appeal raised several issues. Some of those issues were not found to warrant
the court’s exercise of jurisdiction such as inference of fraud and the attendant
evidence. The Court stated as follows:

“[14] … From our careful perusal of the record, we are satisfied that the
dispute as to the ownership of land as a bona fide allottee under the
circumstances and the court’s application of the doctrine of lis pendens
bearing in mind the appellant’s argument surrounding this court’s
advisory opinion concerning the dispute between the National Land
Commission and the Ministry of Lands are issues that involve the
interpretation and application of Article 40 of the Constitution. The
issues surrounding the inference of fraud and the attendant evidence do
not fall for our determination as they were fully ventilated before the
superior courts below…”

With that finding, the Court proceeded to grant conservatory relief in favour of
the appellant in respect of the suit property pending the hearing and
determination of the appeal.

[45] We note that since the focus of our ruling was the preservation of the
substratum for purposes of the appeal, it remains open for the court, now with
the benefit of the arguments in the substantive appeal, to remain satisfied of the
jurisdiction. As recently held in Kampala International University v.

Petition No. E014 of 2023 Page 17 of 23

Housing Finance Company Limited, SC Petition No. 34 (E035) of 2022;
[2024] KESC 11 (KLR) at para. 46:

“… we consider it important to restate the principle that without

jurisdiction, a court of law is incapable of rendering any valid Ruling,
Order or Judgment. In the Ruling cited by the appellant as authority for its
contention that the issue of jurisdiction is now res judicata, all that this
Court did, was to preserve the substratum of the appeal by holding that the
same was arguable. The said ruling did not foreclose future interrogation
of whether, the Court’s jurisdiction has been validly invoked, either by the
court suo motu, or by a party to these proceedings” [Emphasis added]

[46] Indeed, in our ruling at paragraph 15, we gave the benefit of doubt to the
appellant and thought it was necessary to allow the appellant to ventilate its
appeal under the strict confines of Article 163(4)(a) of the Constitution. With
the benefit of the petition of appeal, submissions and the arguments by counsel
for the parties, it emerges that the appeal transmutes from that against the
ruling by the Court of Appeal on the appellant’s application for review of the
judgment by the same court to an appeal against the judgment of the Court of
Appeal. Why do we say so?

[47] The appellant through its Petition of Appeal dated 4th May, 2023
challenges the ruling of the Court of Appeal, which dismissed an application for
review of the Judgment of the Court of Appeal in Civil Appeal No. 384 of
2019. This judgment by the Court of Appeal was made on 19th November 2021.
In the ruling of 14th April 2023, the Court of Appeal (Okwengu, Sichale &
Laibuta JJ.A) held that none of the grounds for review raised disclosed errors
of law that had occasioned real injustice or failure or a miscarriage of justice to
the appellant’s prejudice, and that the appellant had not made a case for review
to promote public interest and enhance public confidence in the rule of law.
Consequently, the Court of Appeal found that the application for review lacked
merit.

Petition No. E014 of 2023 Page 18 of 23

[48] This is the ruling that the appellant indicates in its Notice of Appeal dated
28th April, 2023 that it intended to challenge before this Court. Specifically, the
Notice of Appeal provides as follows:

“…
NOTICE OF APPEAL
(Rule 36 of the Supreme Court Rules, 2020)
TAKE NOTICE that ASHMI INVESTMENT LIMITED, THE
APPELLANT/ APPLICANT herein dissatisfied with the Ruling
made by the COURT OF APPEAL (Honourable Justices Okwengu,
Sichale & Laibuta) sitting at Nairobi delivered on 14th day of April
2023, intends to appeal to the Supreme Court against the
whole of the said Ruling.
…” [Emphasis ours]
However, in the contents of its Petition of Appeal, despite replicating in the
heading of the pleadings that it is an appeal from the ruling aforesaid, the
appellant’s focus shifts to the merits of the judgment of the Court of Appeal
rendered on 19th November 2021, which was the subject of the review
application. It is trite that the filing of a Notice of Appeal is a jurisdictional pre-
requisite to any appellate jurisdiction. Under the Rules, there is a procedural
timeline within which the Notice of Appeal should be filed. From the facts at
hand, no Notice of Appeal indicating an intention to appeal against the said
Judgment was ever filed by the appellant. The Notice of Appeal filed in this
appeal is therefore limited to the Ruling aforesaid.
[49] The foregoing circumstances point to the ingenuity or otherwise
inattentiveness to keeping in line with this Court’s limited jurisdiction in
instituting and prosecuting the appeal. The Court cannot disregard such action.
In University of Eldoret & Another v Hosea Sitienei & 3 others, SC
Petition No.33 of 2019 [2020] eKLR, the Court called out similar attempts in
the following terms:
“[12] The main question that we interrogate is whether the appeal fits
within either of the above principles. A consideration of the petition of

Petition No. E014 of 2023 Page 19 of 23

 appeal reveals that it is an appeal as of right against the ruling on review
delivered on 9th July 2019 …

[13] … Instead, they couched their appeal on the basis of the Court of
Appeal judgment delivered on 18th October 2018. There is no evidence
before us to demonstrate that the judgment of 18th October 2018 was
being appealed. Indeed, the Notice of Appeal filed by the Petitioners is
instructive that the appeal is against the entire ruling of 9th July 2019.

[14] Had the appeal been against the judgment, we could perhaps have
been persuaded differently. Any attempt by the petitioners to merge the
two decisions in their appeal in our view is ingenious but must
nevertheless be stifled at the outset.”

[50] Unrelenting, the parties approached the Court again, this time seeking to
be allowed to now pursue an appeal against the judgment. We asserted the
above position in University of Eldoret & Another v Hosea Sitienei & 3
Others, SC Application No. 8 of 2020; [2020] eKLR and held as follows:

“[33] It is evident that following the decision of the Court of Appeal, the
applicants were faced with two options – to, either file for review of the
decision to the same Court or pursue an appeal before this Court within
either of the applicable jurisdictional contours. ... We agree with the
applicants’ advocates that they could not concurrently pursue both
options as that would be an outright abuse of judicial process. However,
following from our decision in Fahim Yasin Twaha v. Timamy Issa
Abdalla & 2 Others [2015] eKLR, where a litigant has more than one
option to pursue, he/ she must settle on one of them. The decision on
which course to pursue is taken in advance and once it is taken, the other
option is no longer available or placed in abeyance to be reverted to at a
later stage in the event the initial option does not succeed. This means
that when choosing, the litigant is expected to choose the best available
option since she may not have any further recourse.

Petition No. E014 of 2023 Page 20 of 23

 [34] We therefore note that when the applicants preferred to pursue
review of the decision, as they were entitled to, that was the best option
in their assessment even if it turned out to be unsuccessful. Allowing
them to take the second option at this stage, as if they never exercised the
first option in the first place, would not only contribute to protracting
litigation but also defeat the whole essence of finality of the litigation
process. This would mean that precious judicial time and resources
would have been unnecessarily expended in not settling the dispute but
rather satisfying the litigants’ options to cherry pick and engage in trial
and error at the altar of judicial process without the attendant
consequences.” [Emphasis added]

[51] The present situation is no different to warrant any departure from our
now known position. We are not persuaded that the Court is seized of the
requisite jurisdiction as the parameters of review of a judgment by the Court of
Appeal are well settled. The appellant failed to construe a constitutional
argument arising out of such parameters to necessitate the appeal particularly
in so far as it relates to the issues framed in our ruling. The appellant went on
to submit on the issues as if the appeal was against the substantive judgment,
an outright affront to scarce judicial time, resources, process and procedure.

[52] Consequently, the focus of the appeal as presented is incongruent with the
expectation accruing from the Notice of Appeal dated 28th April, 2023. In the
premises, we have no jurisdiction to entertain the same and it should be struck
out.

[53] On the issue of costs, this Court in the case of Jasbir Singh Rai & 3
others v Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012;
[2014] eKLR set out the legal principles that guide the grant of costs and
enunciated that generally, costs follow the event and costs should not be used
to punish the losing party, but to compensate the successful party for the trouble
taken in prosecuting or defending a suit. Taking into consideration all

Petition No. E014 of 2023 Page 21 of 23

circumstances of the hearings herein in all the three superior courts, and the
non-participation of the respondents before us, there shall be no order as to
costs.

G. ORDERS

[54] We thus make the following orders:

i. The Petition of Appeal dated 4th May 2023 and filed on 19th
May, 2023 fails and is hereby struck out for want of
jurisdiction;
ii. We hereby direct that the sum of Kshs.6,000/= deposited as
security for costs in the appeal herein be refunded to the
appellant; and
iii. There shall be no order as to costs.
It is so ordered.

DATED and DELIVERED at NAIROBI this 28th day of June, 2024.

…...………………………………………………………………
M. K. KOOME
CHIEF JUSTICE & PRESIDENT
OF THE SUPREME COURT

……………………..…………........................ ………………………………………………..
P.M. MWILU M. K. IBRAHIM
DEPUTY CHIEF JUSTICE & VICE JUSTICE OF THE SUPREME COURT
PRESIDENT OF THE SUPREME COURT

……………………………………………………… …………………………………………………….
S. C. WANJALA I. LENAOLA
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

Petition No. E014 of 2023 Page 22 of 23

I certify that this is a true copy of the original

REGISTRAR,
SUPREME COURT OF KENYA

Petition No. E014 of 2023 Page 23 of 23