Damaris Akinyi Nondi and another (Suing as Administrators and Personal Representatives of the Estate of James Opiyo Opondo, deceased) v Asghar Khanabhai & 2 others [2019] KEELC 1750 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit property as between the estate of the deceased purchaser and the Defendants
The Plaintiffs proved on a balance of probabilities that the deceased purchased the suit property from John Walter Odiwuor in 1989, and that the Defendants' vendors (relatives of the original owner Juma Dzombo) had no title to pass
The court traced the chain of title through Land Award Case No. 13 of 1985, in which the land was decreed to Juma N Dzombo and sub-divided, with Plot 1B later sold to Odiwuor and then to the deceased under a written sale agreement of 3rd August 1989. DW1 could not explain how his father acquired the land already decreed to Dzombo, and no documents supported the Defendants' purchase. The Defendants therefore bought from persons who neither owned nor possessed the land.
Validity of the title issued to the 2nd and 3rd Defendants during the pendency of the suit and after the injunction
Any title obtained during the pendency of proceedings and in violation of a court injunction is a nullity
The Plaintiffs had obtained an injunction on 27th May 2011 restraining the Defendants from dealing with the suit property. During the proceedings, the Land Registrar nonetheless processed and issued a title to the 2nd and 3rd Defendants. The court held that if that title was acquired illegally during the pendency of the suit and in violation of the injunction, it was a nullity and of no consequence.
Whether the Plaintiffs required consent to institute the suit given the area was under land adjudication
The Plaintiffs obtained the necessary consent under the Land Adjudication Act before instituting the suit
The Defendants attacked the proceedings on the ground that the area was under adjudication and that the Plaintiffs had no consent to sue. The court perused letters dated 24th April 2010 and 12th August 2010 from the District Land Adjudication Officer and was satisfied that the requisite consent had been obtained prior to the institution of the suit.
Entitlement to damages for trespass
Damages for trespass were refused because the injunction had restrained the Defendants from continuing on the land
Although the Plaintiffs pleaded damages for trespass, the court found that following the injunction granted on 27th May 2011, the Defendants were restrained and did not continue to be on the land. In the circumstances, the court declined to award damages and allowed only prayers (a), (b) and (c) of the Amended Plaint.
Legal principles established
#- A title acquired in violation of an injunction order or through illegality is a nullity and of no consequence
- Persons who neither own nor possess land cannot pass title to purchasers; a sale by relatives of a deceased owner without letters of administration conveys nothing
- Civil claims are determined on a balance of probabilities
Court orders
#- 1.Declaration that the land situated at Kabenderani, Mariakani measuring 2.4 acres, currently known as Plot No. 98 Kawala B Adjudication Section, is part of the Estate of the late James Opiyo Opondo and not the property of the Defendants
- 2.Permanent injunction restraining the Defendants, their servants or agents from trespassing onto, obtaining title to, disposing of, developing or interfering with the suit property
- 3.Mandatory injunction compelling the Defendants to remove, at their own costs, the building materials deposited on Plot No. 98 Kawala B Adjudication Section and to cover the foundation dug thereon
- 4.Costs of the suit to the Plaintiffs
- Jurisdiction invoked
- Not expressly stated in the judgment; original civil suit over ownership, trespass and estate land (Land Adjudication Act consent obtained under section cited as obtained prior to suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Damaris Akinyi Nondi and another (Suing as Administrators and Personal Representatives of the Estate of James Opiyo Opondo, deceased) v Asghar Khanabhai & 2 others [2019] KEELC 1750 (KLR)", Case Analysis (2019). Not stated in judgment (suit filed 8th April 2010; Amended Plaint dated 25th August 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1750/eng@2019-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.