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ELCPartially AllowedE.L.C. Case No. 650 of 2012· [2018] KEELC 3050 (KLR)
Grace Jendeka Lusiola v Elias Mbau Ndungu, Paul Irungu Kamau, John Munene Nyagah, Jeniffer Gathoni, Florence Wakonyo, Samuel Wambugu, Raphael Muiru, John Ngugi Njuguna, Florence Mureithi, George Kiura Mugo, Raphael Ndirangu Matu, Jacinta W. Karanja, James Kamau Kitati, Virginia W. Mugera, Paul Nganga Nderitu, Henry Gitau Ndirangu, Doris K. Maitima, Joseph Munyao Katiku & Lucy Wangari Kamau (Environment & Land Case 650 of 2012) (Environment and Land) [2018] KEELC 3050 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#The court confirmed that people who bought land from a seller who never owned it gain no rights against the registered owner in Kenya.
What this practically means
#Executive summary
#The Plaintiff, registered owner of Ruiru/Ruiru East Block 2/4842 measuring 1.120 hectares, sued nineteen defendants seeking a permanent injunction to restrain them from occupying the property, a mandatory injunction to compel them to vacate with liberty to evict and demolish structures, removal of a caution registered by the 15th Defendant, general damages for trespass, and costs. The Defendants contended they were bona fide purchasers of portions carved out of the Suit Property, having bought from Kenneth Gikonyo Mungai, to whom the Plaintiff was alleged to have sold the land. The Plaintiff's attorney, Edwin Kaniaru Mungai, testified she never sold the property and only discovered the caution when seeking to transfer it. The 1st and 15th Defendants conceded there was no agreement with the Plaintiff, that Phibs Investments (Gikonyo's company) issued their ownership certificates, and that the alleged sale agreement between the Plaintiff and Gikonyo was not tendered in evidence. The court held that the Defendants, not being parties to the contract between the Plaintiff and Gikonyo, could not enforce it, and that Gikonyo was incapable of passing title to land registered in the Plaintiff's name; their claim lay against Gikonyo and his land-buying company. On a balance of probabilities the Plaintiff proved her case. The court granted permanent injunction, mandatory injunction, removal of the caution and costs, but declined general damages for trespass since the Plaintiff did not submit on that issue.
Key legal issues
#01
Whether the Defendants, as purchasers from a third party without title, can resist the registered owner's claim
Holding
The Defendants acquired no interest in the Suit Property; the Plaintiff proved her case on a balance of probabilities.
Reasoning
The Suit Property is registered in the Plaintiff's name, which was not disputed. The Defendants bought from Kenneth Gikonyo through Phibs Investments, not from the Plaintiff. The sale agreement between the Plaintiff and Gikonyo was not tendered in evidence, and the Defendants, being strangers to that contract, could not enforce it. Gikonyo could not pass title to land registered in the Plaintiff's name, so the Defendants' remedy lies against Gikonyo and his company.
p. 4
Legal principles established
#- A party who was not party to a contract cannot enforce it; a purchaser from a non-owner acquires no title to land registered in another's name and their claim lies against their vendor.
Court orders
#- 1.Permanent injunction restraining the Defendants from remaining on or continuing in occupation of Ruiru/Ruiru East Block 2/4842
- 2.Mandatory injunction compelling the Defendants to vacate the Suit Property, with liberty to evict and demolish structures in default
- 3.Order directing the Thika District Land Registrar to remove the caution registered against the Suit Property
- 4.Costs of the suit to the Plaintiff
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Jendeka Lusiola v Elias Mbau Ndungu, Paul Irungu Kamau, John Munene Nyagah, Jeniffer Gathoni, Florence Wakonyo, Samuel Wambugu, Raphael Muiru, John Ngugi Njuguna, Florence Mureithi, George Kiura Mugo, Raphael Ndirangu Matu, Jacinta W. Karanja, James Kamau Kitati, Virginia W. Mugera, Paul Nganga Nderitu, Henry Gitau Ndirangu, Doris K. Maitima, Joseph Munyao Katiku & Lucy Wangari Kamau (Environment & Land Case 650 of 2012) (Environment and Land) [2018] KEELC 3050 (KLR)", Case Analysis (2018). E.L.C. Case No. 650 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3050/eng@2018-05-30
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