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ELCPartially AllowedNot stated in the judgment (plaint dated 21/3/2011, filed 23/3/2011, Kitale)· [2019] KEELC 2019 (KLR)

Maurice Antony Wanjala Musee v Anna Wanyama Wanjala & 11 others [2019] KEELC 2019 (KLR)

High Court of Kenya (sitting at Kitale) - land dispute
31 July 2019
MNMwangi Njoroge
4,813 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court evicted land buyers who purchased from someone with no title, confirming you must verify ownership with an official search before buying land in Kenya.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of LR No. Waitaluk/Kapkoi/Block 10/Kapkoi Sisal/152 in Kitale, sued the 1st defendant (his wife under Luhya customary law) and the 2nd to 12th defendants for vacant possession, eviction and general damages for trespass, alleging that the 1st defendant unlawfully sold portions of the land to the other defendants from about 2008. The defendants denied the claim and counterclaimed for ratification of the sale agreements and transfer of the purchased portions, contending that the land was matrimonial property, that the 1st defendant sold to pay school fees, medical expenses and to repay an AFC loan, and that the purchasers were bona fide purchasers for value relying on a decree adopted from a Land Disputes Tribunal award giving the 1st defendant 5 acres. The court held that the tribunal award was ultra vires and null and void, having been quashed by the Bungoma High Court in Misc. Appl. No. 123 of 2006 on 9/12/2009, and that its execution was equally null and void. The 1st defendant, who knew of those proceedings through her advocate, sold portions between October 2008 and May 2010, partly while a stay order was in force, and so had no title to pass. The purchasers, who produced no evidence of an official search and dealt with a non-proprietor, could not invoke indefeasibility of title under section 25 of the Land Registration Act, 2012, and were held to be trespassers. Judgment was entered for the plaintiff: the 2nd to 12th defendants were ordered to vacate the suit land, failing which they would be evicted, with costs borne by the 1st defendant. The 1st defendant, as the plaintiff's undivorced wife, was not branded a trespasser. General damages for trespass were not awarded and the counterclaim necessarily failed.

Key legal issues

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01

Whether the 1st defendant had any right, title or authority to sell the suit land to the 2nd to 12th defendants

Holding

She had none. The land was registered in the plaintiff's name; she admitted having no authority; the Land Disputes Tribunal award on which she relied was ultra vires, null and void, and its execution (the subdivision giving her 5 acres) was itself null and void following the certiorari orders of 9/12/2009 in Bungoma High Court Misc. Appl. No. 123 of 2006

Reasoning

The court found that the tribunal award was quashed by the Bungoma High Court, whose ruling described the tribunal's orders as ultra vires and null and void, together with the execution founded on them. The 1st defendant sold between October 2008 and May 2010, partly while a stay order of 11/6/2008 remained in force, and knew of the judicial review proceedings through her advocate. Her sales therefore lacked any legal authority and amounted to arbitrary deprivation of the plaintiff's land.

p. 4
02

Whether the 2nd to 12th defendants are bona fide purchasers for value without notice entitled to protection

Holding

No. They hold no paper titles from the registered proprietor, produced no evidence of an official search, and dealt with a person who had no title to pass; they cannot invoke indefeasibility of title under section 25 of the Land Registration Act, 2012

Reasoning

Relying on Elizabeth Wambui Githinji (Court of Appeal) on the sanctity of title and West End Butchery Ltd v Arthi Highway Developers Ltd, the court held that a purchaser who does not obtain a transfer from the registered proprietor cannot claim an indefeasible title. The purchasers failed to conduct due diligence and did not call evidence of any official search, so they are trespassers on the suit land.

p. 5
03

Whether the 1st defendant should be adjudged a trespasser and whether the plaintiff proved his claim to the required standard

Holding

The plaintiff's claim was established on a balance of probabilities against all defendants; the 2nd to 12th defendants are trespassers, but the 1st defendant, being the plaintiff's undivorced wife and thus a licensee, was not described as a trespasser, though she was ordered to pay costs

Reasoning

The court distinguished the 1st defendant, whose undissolved marriage to the plaintiff left her a licensee regardless of outcome, from the purchasers, whose occupation depended entirely on the validity of the 1st defendant's non-existent title. Judgment was entered for the plaintiff with vacation/eviction ordered against the purchasers and costs awarded against the 1st defendant for occasioning loss to the purchasers by her conduct.

p. 6

Legal principles established

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  • A person can only pass good title in land if the title in that person's name is clean; a purchaser who does not deal with the registered proprietor cannot invoke indefeasibility of title
  • Purchasers are bound to conduct due diligence, including an official search at the lands office, before buying land
  • Orders of a court are presumed to bind even persons unaware of the proceedings

Court orders

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  1. 1.Judgment entered for the plaintiff against the 1st to 12th defendants
  2. 2.The 2nd to 12th defendants, their agents, employees and/or servants to vacate LR No. Waitaluk/Kapkoi/Block 10/Kapkoi Sisal/152 and, in default, be evicted from the said land
  3. 3.The costs of the suit to be borne by the 1st defendant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Registered Lands Act (repealed)Sections 23(1), 27, 28, 30, 32 and 143
  • Land Registration Act, 2012Sections 25(1), 25(2) and 28
  • Land Disputes Tribunals ActSection 3(1)

Cases cited (3)

  • Elizabeth Wambui Githinji And Others Vs Kenya Urban Roads And Others, Civil Appeal No 156 Of 2013 As Consolidated With Civil Appeal No 160 of 2013
  • West End Butchery Limited V Arthi Highway Developers Limited & 6 Others
    [2012] eKLR
  • Iqbal Singh Rai vs Mark Lecchini and the Registrar of Titles, Civil Case No 1054 of 2001
Jurisdiction invoked
Original civil jurisdiction of the High Court over a claim for trespass, vacant possession and eviction (suit land in Kitale, Trans-Nzoia)

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, "Maurice Antony Wanjala Musee v Anna Wanyama Wanjala & 11 others [2019] KEELC 2019 (KLR)", Case Analysis (2019). Not stated in the judgment (plaint dated 21/3/2011, filed 23/3/2011, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2019/eng@2019-07-31

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