Elizabeth Wanjira Evans v Richard Kipchilat & 2 others [2019] KEELC 1304 (KLR)
The bottom line
#A Nakuru buyer lost her land because two leases existed on one parcel; the court held only the first, registered title counts, but she won damages from her vendor.
What this practically means
#Executive summary
#Key legal issues
#Conflict between two Certificates of Lease over the same parcel
The 1st defendant, whose lease was issued and registered in 1991, holds the better title; a second lease could not validly issue over land whose leasehold title already subsisted in another's name
The court traced the 1st defendant's title from allotment in 1991, payment of requisite fees, survey and registration of the lease. The Bergei Agencies lease, dated 2002 but only registered in 2007, was never entered in the Presentation Book, bore an irregular ground rent figure, was dated a public holiday (1 January), and issued to a business name without the proprietor indicated. No second lease could issue while the first subsisted.
Liability of the vendor (2nd defendant) for breach of covenant of title
Judgment entered against the 2nd defendant for the pleaded special damages since he did not participate in the suit
The plaintiff bought from the 2nd defendant, who covenanted good title but did not have it and did not appear to defend the claim. The court awarded the pleaded sums: purchase price Kshs. 1,800,000/=, land rates/rents Kshs. 154,410/=, liquidated damages of 10% per the sale agreement (Kshs. 180,000/=), and Kshs. 10,000/= valuation fees, limited to amounts pleaded.
Suspected fraudulent second registration / 'title laundering'
The Bergei Agencies lease was likely manufactured; the chain of transactions suggested an attempt to launder the defective title through successive sales
The court noted the five-year delay in registering the Bergei Agencies lease, the identical consideration in the two successive sale agreements despite land normally appreciating, and the 2nd defendant's swift onward disposal, concluding the vendor knew he was passing a defective title.
Legal principles established
#- Only one title can exist at any one time for particular land; a second lease cannot issue over land whose subsisting leasehold title has not been formally cancelled
Court orders
#- 1.Declared that Richard Kipchilat has a better title to Nakuru/Municipality Block 12/210 as between him and the plaintiff
- 2.Nullified and cancelled the leasehold title and Certificate of Lease held by Elizabeth Wanjira Evans
- 3.Issued a permanent injunction barring the plaintiff and her servants/agents from entering upon or interfering with the 1st defendant's use and occupation of the suit land
- 4.Entered judgment for the plaintiff against the 2nd defendant for Kshs. 2,184,510/= with interest at court rates from 29 May 2008 until satisfaction in full
- 5.Ordered the plaintiff to pay the 1st defendant's costs of the suit and counterclaim, with liberty to claim the same from the 2nd defendant, who also to pay the plaintiff's costs as against him
- 6.No orders as to costs for or against the Commissioner of Lands
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Wanjira Evans v Richard Kipchilat & 2 others [2019] KEELC 1304 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1304/eng@2019-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.