In Kaangi & Another v Pulei (Suing as the Personal Representative of the Estate of Kasaine Pulei Kinyoei alias Kasina ole Pulei) & 8 Others, Civil Appeal No. E322 of 2023, the Court of Appeal (Musinga, Gatembu and Achode, JJ.A) delivered its judgment setting aside an Environment and Land Court judgment in its entirety, on the ground that the holders of the cancelled titles were never joined to the suit or heard. The decision affirms an important principle that however strong a finding of fraud may be, it cannot be used to extinguish a registered proprietary interest belonging to a person who was never brought before the court.
The suit concerned Title Number Kajiado/Kipeto/347, part of a larger parcel formerly co-owned by the deceased and another party. The 1st respondent, suing as legal representative of his late father’s estate, alleged that the land parcel had been fraudulently subdivided into six titles to the detriment of his father’s share, and sought their cancellation together with a resurvey. Both the plaint and the defence disclosed that several of the resulting parcels had already been transferred to third parties, and that two others were charged to a financial institution. The defence expressly cautioned the court that these third parties risked having their interests affected without a hearing. The trial judge nonetheless proceeded to judgment, holding that joinder of third parties was unnecessary because the land remained “in the custody of the defendants.” That premise proved factually incorrect: the parcels had already changed hands, and one had been further subdivided.
Upon discovering the judgment, the affected purchasers applied for joinder and for the judgment to be set aside. The trial judge, in the ruling now under appeal, dismissed the application on the basis that the applicants had not demonstrated how the judgment affected their interests.
The Court of Appeal applied the established test for interference with a trial court’s exercise of discretion: whether the judge erred in law or principle, took account of irrelevant matters, omitted relevant ones, or was plainly wrong. It found each of these present. The pleadings on record had already disclosed the existence of affected third parties before judgment was delivered. Under Order 1 Rule 10 of the Civil Procedure Rules, a court may direct the joinder of a necessary party suo motu, without any application by the parties. The trial judge, on notice of the risk, was accordingly obliged to consider joinder suo motu before determining the suit, and his failure to do so was not remedied by later requiring the excluded parties to establish prejudice retrospectively.
The Court did not determine whether the applicants could be regarded as innocent purchasers notwithstanding the underlying fraud finding, an argument advanced by the 1st respondent by reference to the Supreme Court’s decision in Dina Management Limited v County Government of Mombasa & 5 Others. That question did not arise, since the appeal turned entirely on the right to be heard rather than the merits of the fraud claim. The Court accordingly set aside the ELC’s ruling and judgment, remitted the matter for hearing de novo before a different judge with the affected parties joined, and awarded costs of the appeal against the 1st respondent for the initial failure to join them.
The judgment rests on a proposition that admits no qualification: a court cannot permit proprietary rights to be extinguished through proceedings from which the affected proprietor was absent, regardless of how compelling the fraud allegation against the original transaction may appear. Conviction on the part of a trial judge that fraud has occurred does not substitute for the hearing owed to a person whose registered title stands to be cancelled as a consequence.
This is a distinct issue from the question of good faith. Whether a subsequent purchaser acted honestly and without notice of any defect in title is a matter properly tested at trial, with that purchaser present to advance the defence. It is not a basis on which a court may excuse itself from the requirement of joinder. A finding of fraud against the original wrongdoer entitles a plaintiff to judgment against that wrongdoer; it does not, without more, entitle the plaintiff to a judgment binding on subsequent titleholders who were never parties to the suit.
The practical implications for counsel acting for plaintiffs in suits challenging their titles should conduct a full search of the subsequent transaction history of the suit property before filing, and should include every subsequent proprietor whose interest may be affected by the relief sought; failure to do so leaves any resulting judgment vulnerable to being set aside in its entirety. Counsel acting for defendants who are aware of subsequent dealings in the suit property should plead this fact clearly and at the earliest opportunity.
More broadly, the decision reinforces that registered title cannot be treated as incidental collateral in litigation directed at another party’s fraud. The right to be heard is not a procedural formality to be dispensed with where the case against a wrongdoer appears strong; it is the precondition that must be satisfied before any order affecting a third party’s title can properly be made.
