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ELCAllowedELC CIVIL CASE NO. 1088 OF 2016· [2019] KEELC 1095 (KLR)

Wycliffe Lukase & another v Njiru Mihang’o Farmers Housing Scheme & another [2019] KEELC 1095 (KLR)

Environment and Land Court
9 October 2019
LKL. Komingoi
644 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that buyers with a plot certificate and proof of full payment win double-sale land disputes, even when a seller resells the plot.

What this practically means

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Executive summary

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The plaintiffs sued the Njiru Mihang'o Farmers Housing Scheme and Liyo Chando seeking a mandatory order restraining the defendants from entering, developing, transferring or registering Plot No. 633 in Mihingo Area, an order directing the 1st defendant to issue title to them (or alternatively a refund of the purchase price at current market valuation), plus costs and interest. The plaintiffs alleged they purchased the plot from the 1st defendant on 7th October 2014 for Kshs.600,000 plus Kshs.35,000 for building plans, were issued plot certificate No. 914 and ballot No. 756, and took possession, only to find the 2nd defendant developing the premises on 3rd September 2016 claiming to have bought the same plot. The defendants were served but neither entered appearance nor filed a defence, so the suit proceeded to formal proof. The 1st plaintiff adopted his witness statement and produced the sale agreement, plot certificate, ballot, receipts, photographs and a banker's cheque. The court found the plaintiffs' case uncontroverted and held they were bona fide purchasers for value who had proved their case on a balance of probabilities, and that the 1st defendant fraudulently resold the same parcel to the 2nd defendant without disclosing the initial sale. Judgment was entered for the plaintiffs with a permanent injunction against the defendants, an order directing the 1st defendant to issue title to the plaintiffs (alternatively a refund of the purchase price at current market rates upon valuation), and costs of the suit with interest.

Key legal issues

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01

Whether the plaintiffs are bona fide purchasers for value of Plot No. 633

Holding

Yes - they purchased the plot, paid Kshs.600,000 plus Kshs.35,000 for building plans, and were issued Plot Certificate No. 914 and Ballot No. 756

Reasoning

The suit proceeded by way of formal proof after the defendants failed to enter appearance or file a defence. The 1st plaintiff adopted his witness statement and produced the sale agreement, plot certificate, ballot, receipts and banker's cheque. The court found the evidence uncontroverted and sufficient to prove purchase, payment of the full purchase price and taking of possession, and found the 1st defendant fraudulently resold the same plot to the 2nd defendant.

p. 1

Legal principles established

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  • A party who pays the full purchase price and is issued with a plot certificate is a bona fide purchaser for value, and a seller who thereafter sells the same parcel to another without disclosing the initial sale acts fraudulently.

Court orders

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  1. 1.A permanent injunction restraining the 1st and 2nd defendants, their agents and or servants from entering, trespassing, further dealings, development, registration and or transfer of Plot No. 633 within MIHINGO AREA to any person, body and or any unsuspecting buyers
  2. 2.An order directing the 1st defendant to issue title in favour of the plaintiffs; in the alternative the plaintiffs be refunded the purchase price at current market rates upon valuation
  3. 3.The plaintiffs to have the costs of suit and interest
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land

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, "Wycliffe Lukase & another v Njiru Mihang’o Farmers Housing Scheme & another [2019] KEELC 1095 (KLR)", Case Analysis (2019). ELC CIVIL CASE NO. 1088 OF 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1095/eng@2019-10-09

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