Samuel Kigathi Gachara v Charles Wanduto Kihoro & 2 others [2019] KEELC 3894 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a plot allotment is worthless if you don't accept and pay on time.
What this practically means
#Executive summary
#Key legal issues
#Superior claim to the double-allocated plot
The Plaintiff, who accepted the 1992 allotment and paid the requisite dues, holds the superior claim; the 1st Defendant's allotment was fictitious and payments made ten years later
The Plaintiff produced his letter of allotment dated 14/2/1992, acceptance letter and receipt of payment of Kshs. 10,800 within the prescribed period, and Council registers and a Council surveyor's evidence confirmed the plot was allocated to him. The 1st Defendant's purported allotment dated 2/4/1992 was denied by former Town Clerk Zipporah Wandera, and his payment of the stand premium came almost ten years after the allotment, which was commercially and administratively infeasible.
Whether the 1st Defendant passed a good title to the 2nd Defendant
The 1st Defendant did not pass a good title; the conveyance was procedurally irregular and was not supported by consent to transfer, rates clearance certificate or proof of stamp duty
The lease in favour of the 1st Defendant and its transfer to the 2nd Defendant were both registered on 13/12/2001, which the court found implausible. No Council consent to transfer, no rates clearance certificate and no evidence of stamp duty were produced. A search of 12/2/2002 showed the 1st Defendant still registered as proprietor with a certificate of lease issued to him, contradicting the claim of a 13/12/2001 transfer.
The 2nd Defendant's indemnity claim against the 1st Defendant
The 2nd Defendant is entitled to full indemnity from the 1st Defendant against the Plaintiff's claim and the costs of the suit
The 2nd Defendant served a notice of indemnity under Rule 24 of the Civil Procedure Rules alleging fraud and breach of warranty by the 1st Defendant, who warranted the property was free of encumbrances and irregularities. Although the 2nd Defendant did not apply for directions under Order 1 Rule 22, the court, on the notice of indemnity, awarded the 2nd Defendant the costs incurred in defending the suit and full indemnity against the Plaintiff's claim.
Legal principles established
#- An allotment offer lapses if acceptance and payment of the required sums are not made within the stipulated period
- A first registration title cannot be impeached, but a title founded on a fictitious or irregularly procured allotment does not confer a good title
- A party claiming indemnity under Rule 24 of the Civil Procedure Rules must apply by summons in chambers for directions under Order 1 Rule 22 on the trial of the indemnity claim
Court orders
#- 1.Grant of prayers (a), (b), (c) and (d) of the Further Amended Plaint dated 13/8/2014
- 2.Declaration that the Plaintiff is the lawful owner of plot number 29 Jamhuri Phase II, registered as Nairobi/Block 63/597
- 3.Permanent injunction restraining the Defendants from dealing with the Suit Property
- 4.Rectification of the register by cancelling all entries relating to the lease registered in the name of the 1st or 2nd Defendants
- 5.Issuance of a certificate of lease to the Plaintiff
- 6.The 2nd Defendant is entitled to full indemnity from the 1st Defendant against the Plaintiff's claim as well as the costs of the suit
- 7.Costs of the suit awarded to the Plaintiff, to be borne by the 1st Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kigathi Gachara v Charles Wanduto Kihoro & 2 others [2019] KEELC 3894 (KLR)", Case Analysis (2019). ELC. CIVIL SUIT NO. 520 OF 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3894/eng@2019-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.