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ELCDismissedNot stated in the excerpt· [2017] KEELC 3612 (KLR)

Dedan Gitonga Mureithi v Richard Nderitu Karaba & 3 others [2017] KEELC 3612 (KLR)

High Court of Kenya
18 January 2017
LWL N Waithaka
1,360 words in judgment
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The bottom line

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A Kenyan court refused to block a land transfer because the claimant never registered his interest, so the new owner took the property free of his unrecorded claim.

What this practically means

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Executive summary

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This ruling of the High Court at Nyeri (L N Waithaka, J) determined a motion dated 30th March 2016 by Dedan Gitonga Mureithi, the appellant, seeking to preserve the parcel of land known as Muganda/Nairutia/604 by way of restriction and/or inhibition. The applicant claimed to be the beneficial owner, asserted he was not party to the lower court proceedings that produced the decree pursuant to which the property was sold, and feared alienation or further transfer to his detriment and that of others in occupation. The application was opposed through grounds of contention that the applicant's interest had been superseded by the completed auction, that the claim was incompetent and an abuse of process, and that his remedy lay in damages. The 5th respondent was now the registered proprietor following a public auction, while the applicant remained in possession. Counsel for the respondents, relying on Stanley Ng'ethe Kinyanjui v. Tony Ketter & 5 Others (2015) eKLR and Vinette Daphine Okola v. Akich Okola & 3 Others (2006) eKLR, argued that once an auction has taken place without proof of fraud or illegality the only remedy is damages, and that the applicant should have filed objection proceedings to the execution. The court framed a sole issue: whether the applicant had made up a case for the orders sought. Adopting the reasoning in Okola, the court held the applicant ought to have registered his interest; the 5th respondent was unaware of any such interest. The applicant had also sought to be enjoined in a suit already heard and determined without first seeking to set aside the proceedings, using the wrong procedure. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the applicant was entitled to restriction/inhibition over the suit property sold at public auction

Holding

The application was dismissed; the applicant failed to show a case for the orders against the 5th respondent

Reasoning

The court found the applicant was in possession and the property had been sold at public auction. The 5th respondent, whose title the applicant sought to encumber, was unaware of the applicant's interest. The applicant ought to have registered his interest (e.g. caveat) but did not. Further, the applicant sought to be enjoined in a suit already heard and determined without first seeking to set aside the proceedings, using the wrong procedure. On the cited authorities, post-auction the remedy is damages absent fraud or illegality.

p. 3

Legal principles established

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  • A person claiming an interest in land must register that interest (e.g. by caveat) to bind third parties dealing with the property; without registration, and absent notice, no relief will issue against a purchaser
  • Once an auction of property has taken place, without proof of fraud or illegality, the remedy lies only in damages
  • A party cannot use collateral applications to sidestep the elaborate procedural code on execution, sale and stay under Order 21 (now 22) of the Civil Procedure Rules

Court orders

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  1. 1.The application dated 30th March, 2016 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Registration of Titles ActSection 57
  • Civil Procedure RulesOrder 21 (now Order 22)

Cases cited (2)

  • Stanley Ng'ethe Kinyanjui v. Tony Ketter & 5 Others
    (2015) eKLR
  • Vinette Daphine Okola v. Akich Okola & 3 Others
    (2006) eKLR
On appeal from
lower court (magistrates' court)
Jurisdiction invoked
Appellate/supervisory jurisdiction over the lower court suit; the motion dated 30th March 2016 filed in the appeal seeking preservation of the suit property by restriction and/or inhibition

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, "Dedan Gitonga Mureithi v Richard Nderitu Karaba & 3 others [2017] KEELC 3612 (KLR)", Case Analysis (2017). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3612/eng@2017-01-18

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