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ELCDismissedELC Civil Case No. 171 of 2013· [2019] KEELC 1503 (KLR)

Gilbert Keroro Masaki v Charles Nyariki Mabeya & another [2019] KEELC 1503 (KLR)

Environment and Land Court
25 September 2019
2,299 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a landowner's claim because he had no written sale agreement, and the buyer who did everything properly kept the plots.

What this practically means

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Executive summary

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The plaintiff sued the 1st defendant (through whom he claimed to have bought two Kitengela plots via Ubora Housing and Cooperative Society in 1999) and the 2nd defendant (a 2011 purchaser from the 1st defendant) seeking declarations of ownership, nullification of the transfer to the 2nd defendant, cancellation of titles, execution of transfers, and a permanent injunction. The 1st defendant did not enter appearance. The 2nd defendant denied the claims, asserting he was a bona fide purchaser for value who conducted searches, paid the full purchase price and obtained registered titles. The court framed four issues: the plaintiff's bona fide ownership, fraud in the 2nd defendant's title, whether the 2nd defendant was an innocent purchaser, and costs. It found the plaintiff produced no written sale agreement as required by Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act; his deposit slip and receipt were in the 1st defendant's name; and his claim of occupation since 1999 was contradicted by his own testimony on fencing. Relying on Section 26(1) of the Land Registration Act, the court held the 2nd defendant's registered title was prima facie indefeasible and that the plaintiff failed to prove fraud against him. The court applied Thrift Homes Limited vs Kays Investment Limited on the discretionary nature of specific performance, noting the absence of a valid enforceable written contract and of Land Control Board consent. The plaintiff's suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the plaintiff proved bona fide ownership of the suit properties

Holding

He did not; he produced no written sale agreement between himself and the 1st defendant, and the deposit slip and receipt were in the 1st defendant's name

Reasoning

The plaintiff's payment documents were in favour of the 1st defendant, Charles Nyariki Mabeya, and nothing showed the plaintiff deposited the cash. No written agreement for disposition of land was produced as required by Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act. His claim of occupation since 1999 was contradicted by his own testimony that he began fencing in 2011.

p. 3
02

Whether the 2nd defendant's title was fraudulently obtained

Holding

No; the plaintiff failed to prove fraud or that the 2nd defendant was party to any fraud or misrepresentation

Reasoning

Under Section 26(1) of the Land Registration Act a certificate of title is prima facie evidence of absolute and indefeasible ownership, subject only to challenge on fraud or misrepresentation to which the proprietor is proved a party, or illegal, unprocedural or corrupt acquisition. The plaintiff alleged the 1st defendant fraudulently obtained duplicate titles but adduced no proof implicating the 2nd defendant, who did due diligence, searched the register, paid the purchase price and obtained registered transfers.

p. 3
03

Whether the 2nd defendant was an innocent purchaser for value in good faith

Holding

Yes; he followed the proper procedure in acquiring the titles

Reasoning

The 2nd defendant met the 1st defendant in April 2011, was introduced by a third party, conducted official searches confirming the 1st defendant's ownership, executed sale agreements, paid the full purchase price (Kshs.1,650,000 by transfer and Kshs.250,000 in cash and cheques), obtained executed transfers and title deeds, and began construction. This satisfied the requirements of a bona fide purchaser.

p. 3

Legal principles established

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  • A suit upon a contract for the disposition of an interest in land must be founded on a written contract signed by all parties and attested
  • A registered title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or illegal, unprocedural or corrupt acquisition
  • Specific performance is discretionary and unavailable where the contract fails formal requirements, is mistaken or illegal

Court orders

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  1. 1.The plaintiff's case is dismissed
  2. 2.Each party do bear own costs

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Land ActSection 38(1)
  • Land Registration ActSection 26(1)

Cases cited (6)

  • Kimani Ruchire vs Swift Rutherfords & Co. Ltd
    [1980] eKLR
  • Francis Muriuki Gikigi & Others vs Richard Murithi Tito & Another
    [2014] eKLR
  • Elijah Makori Nyang'wara vs Stephen Mungai Njuguna & Another
    [2013] eKLR
  • Chauhan vs Omagwa
    [1985] eKLR
  • Margaret Muthoni Wanyee vs Mukenia Cooperative Society Ltd
    [2018] eKLR
  • Thrift Homes Limited vs Kays Investment Limited
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title 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, "Gilbert Keroro Masaki v Charles Nyariki Mabeya & another [2019] KEELC 1503 (KLR)", Case Analysis (2019). ELC Civil Case No. 171 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1503/eng@2019-09-25

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