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ELCDismissedPetition dated 3rd February 2014 (amended 17th February 2014)· [2017] KEELC 3110 (KLR)

Dave Odhiambo Oricho & another v County Land Registra & 2 others [2017] KEELC 3110 (KLR)

Environment and Land Court
8 March 2017
SKS. M. Kibunja
1,539 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Land buyers who purchase from a vendor with a cancelled title lose the land and must sue the seller, not the government.

What this practically means

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Executive summary

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The two Petitioners, registered proprietors of Kisumu/Wathorego/3635 which they purchased from George Otieno Ojany under a sale agreement of 25th March 2013 for Ksh.1,300,000, petitioned against the Attorney General, the County Registrar of Lands Kisumu and the Director of Surveys. They sought a conservatory order protecting their possession, declarations that the Respondents' cancellation of their title and consolidation of the parcel back to the parent parcel Kisumu/Wathorego/139 breached Articles 40, 48 and 50 of the Constitution, declarations against the 2nd Respondent's fitness for public office, an order quashing the consolidation, damages, and rectification of the register. The Respondents, through the affidavit of Isaac Njiru, explained that parcel 139 was subdivided in 2009 into parcels 3488 to 3490, and parcel 3488 further subdivided into 3634 to 3636; the Chief Magistrate's Court in Kisumu Land Case No.1 of 2011 had ordered cancellation of all titles emanating from the subdivisions. The court found that the vendor was a defendant in that case and knew or ought to have known of the decree of 1st February 2011 when he sold the land, so he had no good title to pass. The Respondents had merely complied with an unchallenged court order. The court held that no constitutional breach attributable to the Respondents was established and dismissed the petition with costs.

Key legal issues

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01

Lawfulness of the cancellation and consolidation of titles emanating from Kisumu/Wathorego/139

Holding

The cancellation and consolidation was lawful because it implemented the decree in Kisumu C.M. Land Case No.1 of 2011 dated 1st February 2011, which was never challenged.

Reasoning

The suit land was a subdivision of parcel 139. By the decree of 1st February 2011 in Kisumu C.M. Land Case No.1 of 2011, the parcels subdivided from parcel 139 were cancelled. The District Land Registrar communicated this effect to the petitioners by letter dated 7th November 2013. Since the Respondents merely complied with an unchallenged court order, their action was lawful and the petitioners' remedy lay against their vendor.

p. 4
02

Whether the Respondents' actions breached the petitioners' constitutional rights under Articles 40, 48 and 50

Holding

No breach was established; the defect lay in the vendor's title, not in the Respondents' conduct.

Reasoning

George Otieno Ojany, the vendor, was a defendant in Kisumu C.M.C.C No.1 of 2011 whose title was affected by the cancellation order of 1st February 2011, and therefore must have known of it when he sold to the petitioners on 25th March 2013. He had no good title to pass. The petitioners' recourse was against the vendor, and no constitutional violation could be attributed to the Respondents.

p. 4

Legal principles established

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  • A vendor who knew or ought to have known that his title had been cancelled by a court order does not have a good title to pass to a purchaser.
  • Land officials who act in accordance with a subsisting, unchallenged court order do not breach the constitutional rights of affected parties.

Court orders

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  1. 1.The petition is dismissed with costs.

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
Jurisdiction invoked
Constitution of Kenya, 2010 (bill of rights enforcement, Articles 40, 48 and 50 invoked)

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, "Dave Odhiambo Oricho & another v County Land Registra & 2 others [2017] KEELC 3110 (KLR)", Case Analysis (2017). Petition dated 3rd February 2014 (amended 17th February 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3110/eng@2017-03-08

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