Billia M. Murunga v Simon Simiyu Mutebo 7 another [2015] KEELC 678 (KLR)
The bottom line
#A valid purchase from a registered landowner beats a flawed auction sale, and fraud claims fail unless backed by evidence.
What this practically means
#Executive summary
#Key legal issues
#Who was in lawful possession of the suit land before the alleged eviction
The plaintiff, having bought from the registered owner in 2001 and taken possession, was in lawful possession until evicted by the first defendant in 2005 using an eviction order against Ngeywa.
The plaintiff produced a sale agreement dated 14/11/2001 and took possession upon execution. The eviction order produced by the second defendant was against James Lumbasi Ngeywa, not the plaintiff, yet it was used to evict the plaintiff. The defendants' claims of occupation since 1981/1984 were inconsistent with the first defendant having sought an eviction order against Ngeywa and with the sale of the land to recover damages.
Whether the second defendant validly purchased the suit land at a public auction
No valid auction was conducted and title did not pass to the second defendant.
The court found the purported auction did not comply with the Civil Procedure Rules: no delivery of possession, no notice to the plaintiff in possession, no evidence of warrants to sell, no evidence of advertisement, and the auction was a device to wrest the land from Ngeywa after he had sold it to the plaintiff.
Whether the plaintiff's registration was procured by fraud
No fraud was proved against the plaintiff; her registration is valid and the sale to her is not vitiated.
The second defendant pleaded four particulars of fraud but proved none. The court also found the second defendant's demeanour wanting, her accounts of purchase and occupation contradictory. The plaintiff bought in 2001, before the second defendant's purported 2004 auction purchase.
Absence of Land Control Board consent
The issue of consent of the Land Control Board, raised belatedly by the defendants, fails; they bore the burden of proving there was no consent.
The consent issue should have been raised by the vendor, James Lumbasi Ngeywa, who sold to the plaintiff. The defendants, who sought to fault the transfer and registration, adduced no evidence showing that consent was absent.
Legal principles established
#- A plaintiff's title registered after a valid purchase from the registered owner prevails over a purported auction purchase not conducted in accordance with the Civil Procedure Rules.
- Allegations of fraud must be proved by the party alleging them.
Court orders
#- 1.Dismissal of the second defendant's counter-claim with costs to the plaintiff
- 2.Order of eviction of the defendants from the suit land
- 3.Permanent injunction restraining the defendants or their agents from interfering with the suit land
- 4.Costs of the suit awarded to the plaintiff
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land (Article 162(2)(b) of the Constitution as read with the Environment and Land Court Act - not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kimoi Ruto & another v Samuel Kipkosgei Keitany & 5 others [2019] KECA 231 (KLR)[2019] KECA 231 (KLR)17 Oct 2019
Cite this brief
#Cite this brief
Caselaw, "Billia M. Murunga v Simon Simiyu Mutebo 7 another [2015] KEELC 678 (KLR)", Case Analysis (2015). Land Case No. 93 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/678/eng@2015-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.