Mwangi Kiarie v Joreth Limited & 2 others [2019] KEELC 4304 (KLR)
The bottom line
#A man who paid to regularise his plot and lived on it since 1985 beat later registered owners who couldn't prove they paid for the land.
What this practically means
#Executive summary
#Key legal issues
#Better claim to the suit land as between an occupier who paid the regularisation consideration and registered transferees
The Plaintiff who paid the consideration through Joreth Limited's authorised agents and had been in occupation since 1985 had the better claim.
The court found it undisputed that Kimani Kahiro & Advocates were Joreth Limited's authorised agents mandated to receive the Kshs. 200,000/= regularisation payments, and that the Plaintiff paid through them before their services were terminated in 2009. The court preferred the Plaintiff's evidence, corroborated by the agents' cashier, that his payment was forwarded to Joreth Limited. The 2nd and 3rd Defendants, despite close ties with Joreth Limited's directors, produced no evidence of paying the Kshs. 10 million consideration, and would have discovered the Plaintiff's occupation had they conducted due diligence.
Bona fide purchaser status of the 2nd and 3rd Defendants
The 2nd and 3rd Defendants failed to establish bona fide purchaser status.
The court found no evidence that the 2nd and 3rd Defendants actually paid the Kshs. 10 million consideration for the suit property, which would cause the contract between them and Joreth Limited to fail for want of consideration. The 3rd Defendant worked closely with a director of the 1st Defendant and could have ascertained whether the plot had been repossessed for resale. Proper due diligence in 2012 would have revealed the Plaintiff's actual occupation of the land, undermining their claim to have purchased a vacant property in good faith.
Whether the Plaintiff proved his case and whether the counterclaim succeeded
The Plaintiff proved his case on a balance of probabilities and Joreth Limited's counterclaim was dismissed.
The court accepted that the Plaintiff purchased plot 295 from Ngotho Njenga in 1985, occupied it continuously, and paid the regularisation consideration pursuant to Joreth Limited's 2005 newspaper advertisement and the consent order in HCCC No. 6206 of 1992. Payments made outside the 30-day window did not defeat his claim since his last payments were received in 2008, well before the 2012 transfer to the 2nd and 3rd Defendants. Joreth Limited failed to prove its counterclaim for eviction and a permanent injunction.
Legal principles established
#- A transfer of land may fail for want of consideration where no evidence of payment of the purchase price is led.
- Due diligence on land includes inquiry into actual occupation of the land.
Court orders
#- 1.The court grants prayers (a), (b) and (c) of the Amended Plaint dated 27/6/2014
- 2.The 1st Defendant's counterclaim is dismissed
- 3.Costs of the suit and counterclaim awarded to the Plaintiff
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Longonot Horticulture Limited v James Wakaba Maina [2019] KEELRC 1730 (KLR)[2019] KEELRC 1730 (KLR)29 Apr 2019
- Surekha Hasmukhlal Virchand Shah & 2 others v Investments & Mortgages Bank Ltd [2018] KECA 66 (KLR)[2018] KECA 66 (KLR)23 Nov 2018
- Amos Kipkorir Buttit & 2 others v Bank of Africa Kenya Ltd [2017] KEELC 2171 (KLR)[2017] KEELC 2171 (KLR)28 Jul 2017
Cite this brief
#Cite this brief
Caselaw, "Mwangi Kiarie v Joreth Limited & 2 others [2019] KEELC 4304 (KLR)", Case Analysis (2019). ELC. Case No. 658 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4304/eng@2019-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.