Kariuki & 2 others v Mwamunga (Environment and Land Case 239 of 2015) [2018] KEELC 2381 (KLR)
The bottom line
#A Kenyan land seller who never delivered vacant possession or explained his title was ordered to refund KShs 31.2 million and take back the plots.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant handed over vacant possession of the suit land
The Defendant never gave vacant possession; the Plaintiffs were prevented from using the land by squatters who later sued them
Although the plots were transferred to the Plaintiffs' nominees in September 2012, the 1st Plaintiff's attempt to fence the land was repulsed by squatters who occupied portions, put up buildings, and filed suits (Mombasa ELC No. 214 of 2014 and Malindi ELC No. 177 of 2015 (O.S)) claiming ancestral ownership. Both PW1 and DW2 confirmed the invasion. Applying Cumberland Consolidated Holdings Ltd v Ireland, a physical impediment the purchaser never consented to defeats vacant possession even if the right to possession exists in law.
Whether the Defendant failed to disclose the genesis of his title by refusing to produce the mother title
The Defendant was under an obligation to provide the mother title and, having remained mute, was treated as a vendor selling land shrouded in mystery
The 19 Certificates of Title were only issued on 9th March 2012, while the Deed Plans dated from 1993; by the time of sale the Defendant held only Deed Plans, not titles. Repeated advocate letters of 27th September 2013, 2nd December 2013, 10th June 2014 and 28th November 2014 seeking the mother title went unanswered, and the Defendant gave no evidence of the title number, its issuance or closure. A vendor who sells land whose title history he will not divulge must refund and take back the land.
Whether the 1st Plaintiff was entitled to a refund and damages
Refund of Kshs. 31,272,000 with interest was granted; aggravated and exemplary damages were refused for want of proof
Having paid Kshs. 31,272,000 but never taken vacant possession, the 1st Plaintiff was entitled to rescission-type relief: refund with interest and re-transfer of the plots to the Defendant. The punitive heads of damages were not proved, so the suit succeeded only in part.
Legal principles established
#- Vacant possession is not delivered where there is a substantial impediment to the purchaser's use of the property at or immediately after purchase
- Where a vendor sells land whose title is shrouded in unresolved mystery and refuses to divulge its genesis, the just remedy is re-transfer to the vendor and refund of the purchase price
Court orders
#- 1.The Defendant to refund to the 1st Plaintiff Kshs. 31,272,000 whereafter the 2nd and 3rd Plaintiffs will re-transfer parcels of land known as sub-division numbers 2514-2523, Section 111 Mainland North and sub-division numbers 2554-2562 Section 111 Mainland North to the Defendant
- 2.The Plaintiff to pay interest on the above amount from the date of the Judgment until payment in full
- 3.The Defendant to pay the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the sale and possession of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki & 2 others v Mwamunga (Environment and Land Case 239 of 2015) [2018] KEELC 2381 (KLR)", Case Analysis (2018). ELC suit (Plaint dated 24th November, 2015) – number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2381/eng@2018-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.