Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment as provided· [2018] KEELC 945 (KLR)

Lucy Nduta Njuguna v Charles Kabutha Njuguna & another [2018] KEELC 945 (KLR)

Environment and Land Court
31 October 2018
2,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

You cannot sell jointly owned Kenyan land without every co-owner's consent, and weak expert evidence will sink a claim for lost income.

What this practically means

#

Executive summary

#
The Plaintiff, one of four sisters who jointly owned land parcel LOC.1/MUKURWE/1029, sued the Defendants (agents of the other sisters, holding powers of attorney) seeking removal of a caution registered against the title, a permanent injunction, mesne profits, and Kshs. 449,100.00 as loss of income allegedly suffered during a three-year inhibition issued in CMCC No. 473 of 2012 (Thika), which had been filed after the Plaintiff and one sister sold the land to a third party over the objection of the other two joint tenants. The court held the suit was not res judicata because damages were not canvassed in the Thika suit. Applying section 91(4) of the Land Registration Act, the court found the Plaintiff's purported sale void ab initio since dispositions of jointly occupied land may only be made by all joint tenants, making the Defendants' intervention not entirely unfounded. The loss-of-income claim failed because the Plaintiff's expert witness did not table his credentials, produced a scanty report without the Agricultural guide on which his figures were based, and gave evidence inconsistent with that of DW1, casting doubt on the report's authenticity; the transport costs claim was covered by costs awarded in the Thika case and the wages claim was unsupported. Evidence that the Plaintiff continued farming during the inhibition was uncontroverted, defeating mesne profits. However, the Defendants showed no good cause for the caution to remain. The court ordered removal of the caution at the Defendants' cost, issued a permanent injunction against the 2nd Defendant, declined mesne profits and the Kshs. 449,100.00 claim, and directed each party to meet their own costs.

Key legal issues

#
01

Res judicata

Holding

The suit is not res judicata because damages were not canvassed in the prior Thika suit.

Reasoning

The court perused the lower court record in CMCC No. 473 of 2012 and found that issues of locus and joint ownership were determined there, but the question of damages was not canvassed; therefore the claim for loss of income does not offend section 7 of the Civil Procedure Act.

p. 4
02

Joint tenancy and disposition

Holding

The Plaintiff's purported sale of the jointly owned land without the other joint tenants was null and void ab initio under section 91(4) of the Land Registration Act.

Reasoning

Section 91(4) provides that dispositions of jointly occupied land may be made only by all the joint tenants, and any attempt to transfer an interest to another person is void. The Plaintiff sold to a third party against the will of two joint tenants; the Defendants' action in lodging the caution was therefore not entirely unfounded as it sought to safeguard the joint asset.

p. 5
03

Loss of income / damages

Holding

The claim for loss of income fails for want of credible evidence.

Reasoning

The expert witness did not table his credentials, produced a scanty report without the Agricultural guide underlying his figures, and contradicted DW1's evidence on the area of nappier grass and presence of building stones, casting doubt on whether he visited the land. The Defendants also did not produce evidence to challenge the assessment, but the report itself failed the authenticity threshold.

p. 4
04

Removal of caution

Holding

The caution is removed because the Defendants did not show good cause for it to remain.

Reasoning

Despite the Plaintiff's void sale, the court found the Defendants had not justified the continued presence of the caution registered by the 2nd Defendant claiming beneficiary interest; a caution requires justification which was not demonstrated.

p. 5

Legal principles established

#
  • Where land is occupied jointly, dispositions may be made only by all the joint tenants and any attempt to transfer an interest to a person other than the other joint tenants is void.

Court orders

#
  1. 1.An order directing the Defendants to remove and/or cause the removal of the caution registered against the title number LOC.1/MUKURWE/1029 forthwith and at their own cost.
  2. 2.A permanent injunction restraining the 2nd Defendant whether by himself or through his agents and/or servants from trespassing upon, entering into, farming, leasing, letting, subdividing, selling or in any other manner howsoever interfering with the suit land.
  3. 3.Mesne profits is declined.
  4. 4.The sum of Kshs. 449,100.00 as particularized at paragraph 17 is declined.
  5. 5.Each party to meet the costs of the suit.

Authorities

#

Legislation

  • Land Registration ActSection 91(4)
  • Civil Procedure ActSection 7
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (not expressly cited in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lucy Nduta Njuguna v Charles Kabutha Njuguna & another [2018] KEELC 945 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/945/eng@2018-10-31

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