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ELCAllowedELC. CIVIL SUIT NO. 520 OF 2007· [2019] KEELC 3894 (KLR)

Samuel Kigathi Gachara v Charles Wanduto Kihoro & 2 others [2019] KEELC 3894 (KLR)

Environment and Land Court
4 March 2019
4,706 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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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

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Executive summary

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This was a first-instance dispute over the double allocation of Jamhuri Phase II plot number 29, subsequently registered as Nairobi/Block 63/597, claimed by the Plaintiff under a letter of allotment dated 14/2/1992 from the then Nairobi City Commission, and by the 1st Defendant under a purported letter of allotment dated 2/4/1992. The Plaintiff paid his allotment dues promptly, took possession, lodged a caution in 2002 and sought a declaration of ownership, a permanent injunction and rectification of the register. The 1st Defendant, whose lease was registered on 13/12/2001 and transferred the same day to the 2nd Defendant, pleaded first registration and bona fide purchase. The 2nd Defendant pleaded bona fide purchaser for value without notice and filed a notice of indemnity against the 1st Defendant. The court found the Plaintiff's allotment documentation, payments and Council registers conclusive; the 1st Defendant only paid the stand premium almost ten years after the purported allotment, and the former Town Clerk denied executing his letter of allotment. The simultaneous registration of the lease and its transfer, absence of Council consent, rates clearance certificate and proof of stamp duty rendered the conveyance to the 2nd Defendant irregular. The court found for the Plaintiff on a balance of probabilities and granted prayers (a) to (d) of the Further Amended Plaint, including rectification of the register and issuance of a certificate of lease to him. On the notice of indemnity, the 2nd Defendant was awarded full indemnity from the 1st Defendant against the Plaintiff's claim and the costs of the suit. The Plaintiff's costs were awarded against the 1st Defendant.

Key legal issues

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01

Superior claim to the double-allocated plot

Holding

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

Reasoning

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.

p. 3
02

Whether the 1st Defendant passed a good title to the 2nd Defendant

Holding

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

Reasoning

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.

p. 4
03

The 2nd Defendant's indemnity claim against the 1st Defendant

Holding

The 2nd Defendant is entitled to full indemnity from the 1st Defendant against the Plaintiff's claim and the costs of the suit

Reasoning

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

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  • 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

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  1. 1.Grant of prayers (a), (b), (c) and (d) of the Further Amended Plaint dated 13/8/2014
  2. 2.Declaration that the Plaintiff is the lawful owner of plot number 29 Jamhuri Phase II, registered as Nairobi/Block 63/597
  3. 3.Permanent injunction restraining the Defendants from dealing with the Suit Property
  4. 4.Rectification of the register by cancelling all entries relating to the lease registered in the name of the 1st or 2nd Defendants
  5. 5.Issuance of a certificate of lease to the Plaintiff
  6. 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. 7.Costs of the suit awarded to the Plaintiff, to be borne by the 1st Defendant

Authorities

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Legislation

  • Civil Procedure RulesRule 24
  • Civil Procedure RulesOrder 1
  • Civil Procedure RulesOrder 1 Rule 22
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Environment and Land Court Act)

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, "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.