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ELCOtherEldoret HCCC (not specified in judgment - land claim re Uasin Gishu/Kimumu/1567)· [2018] KEELC 3353 (KLR)

Elizabeth Sarange B. Abenga v Milka Musimbi Mavia & 8 others [2018] KEELC 3353 (KLR)

High Court of Kenya
18 April 2018
AOA. Ombwayo
4,742 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, Elizabeth Sarange B. Abenga, sued the widow and children of the late John Mabia Wetira, alleging that as registered proprietor since 9 December 2005 of land parcel Uasin Gishu/Kimumu/1567, she was entitled to quiet possession, and sought a declaration that the defendants were trespassers, an order for their eviction, removal of structures, a permanent injunction, costs and interest. The defendants, in an amended defence and counterclaim, asserted long occupation as family land, overriding interests under section 30(g) of the repealed Registered Land Act, fraud and non-disclosure in obtaining the Land Control Board consent, and reliance on a Land Disputes Tribunal award in their favour adopted as a court order. They also contested the court's jurisdiction. The plaintiff testified to a cash purchase of Kshs.450,000 concluded on 13 and 16 September 2005, with title issued on 9 December 2005. The court traced the register and found that a tribunal dispute between the family and the vendor was pending when the plaintiff was registered; the tribunal resolved the dispute on 14 October 2005 in favour of the family, its award was adopted on 15 December 2005, and the restriction on dealings was removed on 8 December 2005 shortly before registration. Applying the doctrine of lis pendens (Bellamy v Sabine; Mawji v US International University) and noting the defective, undated Land Control Board consent obtained by non-disclosure, the court held the plaintiff's registration to be a nullity obtained illegally and contrary to a court order. The court ordered rectification of the register by cancelling the plaintiff's registration and registering the 1st and 3rd defendants as trustees for the remaining defendants and the estate of the 9th defendant, with costs to the defendants.

Key legal issues

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01

Effect of the Land Disputes Tribunal award and lis pendens on the plaintiff's registration

Holding

The plaintiff's registration was a nullity because it was effected while the tribunal dispute was pending and contrary to the tribunal award later adopted as a court order

Reasoning

The Tribunal resolved the dispute on 14.10.2005 in favour of the defendants' family and ordered the land registered to them; the award was adopted on 15.12.2005. The plaintiff was not a party, but the doctrine of lis pendens, recognised under section 52 of the TPA and at common law, binds purchasers of property in litigation as if they had notice. The restriction was removed on 8.12.2005 and the land registered to the plaintiff on 9.12.2005 to pre-empt adoption of the award, which the court found illegal.

p. 6
02

Validity of the Land Control Board consent

Holding

The consent was invalid, being undated, lacking disclosure of the nature of the transaction and purchase price, and obtained before the sale agreement

Reasoning

The consent application was undated so its timing could not be verified; the nature of the transaction and consideration were not disclosed. The consent issued on 5.8.2005 preceded the sale agreement of 13.9.2005. Non-disclosure of the pending tribunal dispute meant the consent was based on non-disclosure of material facts.

p. 6
03

Remedy - rectification of register and trusteeship

Holding

The court directed cancellation of the plaintiff's registration and registration of the 1st and 3rd defendants as trustees for the rest of the family

Reasoning

Having found the registration a nullity, the court exercised its power to rectify the register so that the land reverts to the family, with the 1st defendant (widow) and 3rd defendant registered as trustees for the other children and the estate of the 9th defendant.

p. 6

Legal principles established

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  • A transfer of land effected while a dispute over that land is pending before a tribunal/court is caught by the doctrine of lis pendens and any registration obtained in breach of it, or contrary to an adopted tribunal award, is a nullity
  • Non-disclosure of material facts vitiates a Land Control Board consent

Court orders

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  1. 1.That the register relating to land parcel Uasin Gishu/Kimumu/1567 be rectified by cancelling the registration of the plaintiff as proprietor
  2. 2.That the 1st and 3rd defendants be registered as trustees for the 2nd, 4th, 5th, 6th, 7th, 8th and Estate of the 9th defendants
  3. 3.Costs to the defendants

Authorities

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Legislation

  • Registered Land Act, Cap 300 (repealed)Section 30(g)
  • Land Disputes Tribunals Act No. 18 of 1990Section 3
  • Land Registration Act, 2012Section 26
  • Judicature Act, Cap 8Section 3(1)
  • Transfer of Property Act (TPA)Section 52
  • Registration of Titles Act (RTA)Section 23
  • ConstitutionNot specified (referenced within section 3(1) Judicature Act quotation)

Cases cited (2)

  • Bellamy vs Sabine
    [1857] 1 De J 566
  • Mawji vs US International University & another
    [1976] KLR 185
Jurisdiction invoked
Original civil jurisdiction of the High Court over title to registered land (dispute referred to in pleadings as Eldoret Hcc; defendants had contested jurisdiction by invoking the Land Disputes Act)

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, "Elizabeth Sarange B. Abenga v Milka Musimbi Mavia & 8 others [2018] KEELC 3353 (KLR)", Case Analysis (2018). Eldoret HCCC (not specified in judgment - land claim re Uasin Gishu/Kimumu/1567). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3353/eng@2018-04-18

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