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ELCPartially AllowedELC Suit No. 240 of 2013· [2017] KEELC 2883 (KLR)

Nzamba Kitonga v Geoffrey Muthui Mbivya [2017] KEELC 2883 (KLR)

Environment and Land Court of Kenya
16 March 2018
NANaikuni
2,428 words in judgment
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The bottom line

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A Kenyan court cancelled a company's land title because it bought property from a deceased person's estate without proper succession documents or due diligence.

What this practically means

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Executive summary

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This is a judgment of the Environment and Land Court at Nairobi delivered by Naikuni J. The Plaintiffs, the legal representative and family members of the late Muthuka Kavyu, brought this suit against Afflatus Investigators Ltd seeking a declaration that they are the bonafide and legally registered proprietors of the parcel of land known as Machakos Municipality Block 24 (New Rehema) 560, general damages for trespass, and a permanent injunction against the Defendant. The Defendant denied the Plaintiffs' claim and filed a counter-claim seeking a permanent injunction. The court framed five issues for determination, including the question of the bonafide and legally registered proprietor of the suit property, whether the Plaintiffs were unlawfully deprived of the property, and whether the Defendant is an innocent purchaser for value without notice. The court held that the Defendant had failed to prove that it conducted due diligence before purchasing the suit property, and that no succession cause had been obtained by the time the property was transferred, rendering the transfer unprocedural and illegal. The court found that the claim of customary trust by the Plaintiffs did not meet the threshold set out in the case of Isabel Chelangat. The court entered judgment for the Plaintiffs to the extent that the title of the Defendant was cancelled, the property was ordered to revert to the name of the deceased, and vacant possession was granted within ninety days. The Defendant was permanently restrained from dealing with the suit property. The Plaintiffs' claim for general damages for trespass was declined, and the Defendant's counter-claim was dismissed. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Defendant is an innocent purchaser for value without notice

Holding

The court held that the Defendant did not prove that it was an innocent purchaser for value without notice of the interests of the Plaintiffs and their deceased father.

Reasoning

The court examined the evidence of due diligence and found that the Defendant had failed to demonstrate that it conducted due diligence to find out if there were any dealings with the suit property. The court found that the Defendant had not produced evidence to show that it was a bona fide purchaser and did not conduct a search at the land registry to find out if the suit property had any encumbrances.

02

Whether the sale and transfer of the suit property were procedurally and legally obtained

Holding

The court found that the sale and transfer of the suit property were unprocedural and did not comply with the applicable legal procedures.

Reasoning

The court reviewed the documentary evidence and found that the transfer did not comply with the law, as no consent to transfer was obtained from the relevant authorities and no proper conveyancing process was followed. The court noted that the suit property was registered in the name of a deceased person at the time of transfer and no succession cause had been obtained.

Legal principles established

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  • A person whose name does not appear on the register as the proprietor has no claim against an innocent purchaser whose title has been regularly procured.
  • A party to a claim of customary trust must plead and give particulars of the trust before the same can be adjudicated upon.

Court orders

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  1. 1.Judgment be and is hereby entered for the Plaintiffs against the Defendant to the extent that the Title Deed of the parcel of land known as Title Number Machakos Municipality Block 24 (New Rehema) 560 held by the Defendant is hereby cancelled and the said property to revert to and be registered in the name of MUTHUKA KAVYU (deceased)
  2. 2.The Defendant be and is hereby ordered to give vacant possession of the suit property known as Title Number Machakos Municipality Block 24 (New Rehema) 560 to the Plaintiffs within a period of ninety (90) days from the date of this judgment
  3. 3.In default of giving vacant possession, the Plaintiffs be and are hereby at liberty to apply for a Writ of Eviction against the Defendant
  4. 4.The Defendant be and is hereby permanently restrained from trespassing onto, alienating, transferring or in any other manner dealing with the suit property
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • The Constitution of KenyaArticle 162(2)(b), Article 68(c)(i)
  • Land Registration ActSection 26(1)
  • Land ActSections 52, 61, 107 and 108
  • Law of Succession ActSection 45
  • Registration of Titles ActSections 53, 58, 60, 63 and 128
  • Trustees (Perpetual Succession) ActSection 3

Cases cited (1)

  • Katende v Haridar & Company Limited
    [2008] 2 EA 173
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 read together with Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nzamba Kitonga v Geoffrey Muthui Mbivya [2017] KEELC 2883 (KLR)", Case Analysis (2018). ELC Suit No. 240 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2883/eng@2017-05-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.