Maria Lilian Odongo Ouya v Mathew O Oseko & 3 others

The court noted that service of summons serves to alert a defendant of the suit, but where a party appears and participates substantially, the object of service is achieved. Relying on Girado Othieno Mahaja, the court held Lero Luno Ltd and Mr. Raballa were estopped from denying jurisdiction. The consent consolidation order could only be set aside on grounds such as fraud, mistake or misrepresentation, which were not shown. Further, under Order 24 rule 1, a suit does not abate by the mere death of a party where the cause of action continues against the surviving defendant, Lero Luno Ltd.

Although the written agreement remained in draft, Mr. Raballa's affidavits acknowledged negotiations and receipt of deposits totalling Ksh.380,000 including Ksh.300,000 in March 1993. The Osekos took possession in 1993, constructed an access road and gave a bank guarantee for the balance. The pre-2003 section 3(3) proviso permitted suits on oral land contracts where possession was taken in part performance. Distinguishing Michira v Gesima and Kukal Properties (which turned on the post-2003 proviso), the court held the terms and conduct showed a sufficient meeting of minds. Mr. Raballa, a director for whom one director formed quorum, acted for Lero Luno Ltd, which was bound by its agent's actions despite privity exceptions.

Section 52 of the ITPA provides that during active prosecution of a suit in which a right to immovable property is directly in question, the property cannot be transferred so as to affect the rights of any other party. Citing Naftali Ruthi Kinyua (adopting Bellamy v Sabine) and Marete v Ndegwa, the court reiterated that lis pendens runs with the suit. The dismissal of the interlocutory injunction application did not terminate the suit; the doctrine remained active until judgment. Having found an enforceable agreement and a pending suit, the properties were not available for transfer to Ms. Mhina in 1998.

Relying on Dina Management and Munyu Maina, a registered proprietor whose root of title is under challenge must prove the legality of the acquisition beyond the title instrument. The letter of 11th November 1996 from Munikah & Company Advocates - who acted both for Lero Luno Ltd's remaining director and for Ms. Mhina - showed notice of the Osekos' interest. The appellants never met Ms. Mhina, produced no evidence of payment of the purchase price, no land control board consents and no rates clearance certificates. The Osekos' long possession was constructive notice of an defect in title.

Citing Rule 31(1)(a) of the Court of Appeal Rules, Peters v Sunday Post and Selle v Associated Motor Boat Company, the court stated its duty as a first appellate court proceeding by way of retrial. It will not normally interfere with findings of fact unless based on no evidence, on a misapprehension of the evidence, or where the judge acted on a wrong principle (Sumaria v Allied Industries; Mwangi v Wambugu).