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ELCDismissedELC No. 1321 of 2006· [2019] KEELC 4555 (KLR)

Kenneth Chege Kamau & 2 others v Thome Farmers No.5 Ltd & 3 others [2019] KEELC 4555 (KLR)

Environment and Land Court
7 February 2019
EOE. O. Obaga
2,908 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A family lost its claim to prime Nairobi land because it could not prove with company records that the original plot became the title in dispute.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Jackson Kamau Gaichinga, sued Thome Farmers No.5 Limited, the 2nd and 3rd defendants, and Joreth Limited. The deceased was a member of Thome Five, a land buying company with an informal arrangement to buy two parcels from Joreth; the deceased was allocated plot No.456, which the plaintiffs claimed became LR No.13330/345. In 2006 Joreth advertised unsold plots, and the 2nd and 3rd defendants purchased the suit property for Kshs.2.8 million after a search and due diligence, subsequently constructing a four-storey building. The plaintiffs sought declarations of beneficial ownership, cancellation of the transfer, an injunction, eviction, compensation of Kshs.70,000,000 and costs. The court framed five issues. It found no evidence, in the form of registers, subdivision records or maps, connecting plot No.456 to the suit property. Even assuming identity, the purchasers had no knowledge of the deceased's interest: they bought after press advertisements, verified title in Joreth's name, and found the land vacant. The estate had failed to respond to Joreth's offer for occupants to pay Kshs.200,000 and obtain transfer. The court held that although Joreth's reneging on its gentleman's agreement with Thome Five may appear immoral, it was not fraudulent, and no particulars of fraud were directed against Thome Five, so no compensation could be ordered. The plaintiffs failed to prove their claim on a balance of probabilities, and the suit was dismissed with costs to the 2nd, 3rd and 4th defendants.

Key legal issues

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01

Identification of the allotted plot with the suit property

Holding

Not proved that plot No.456 became LR No.13330/345

Reasoning

Apart from the plaintiffs' word, no registers, subdivision records or maps were produced linking plot No.456 to LR No.13330/345. The onus lay on the plaintiffs to establish the suit property's identity, and the absence of corroborating company records made it impossible to conclude that the deceased's ballot corresponded to the title now held by the 2nd and 3rd defendants.

p. 3
02

Notice of the deceased's interest to the purchasers

Holding

Purchasers had no knowledge of the deceased's interest

Reasoning

The 2nd and 3rd defendants responded to a press advertisement, visited the land which was vacant, and conducted a search confirming Joreth as registered owner. The deceased's estate failed to respond to Joreth's opportunity for occupants to pay and obtain transfer, so the purchasers could not have known of any competing interest.

p. 3
03

Fraud in the sale and transfer

Holding

No fraud proved against Joreth or the 2nd and 3rd defendants

Reasoning

Title remained with Joreth as the informal sale to Thome Five was never completed in writing. Joreth had given occupants an opportunity to regularise their plots; the deceased's estate failed to act. The purchasers verified the search showing Joreth as proprietor before paying Kshs.2.8 million and obtaining transfer.

p. 3

Legal principles established

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  • A plaintiff claiming beneficial ownership must prove the connection between an allotted plot and the resulting title with records such as registers, subdivision schemes or maps; bare testimony is insufficient.
  • Fraud must be proved; conduct that may appear immoral does not amount to fraud.
  • A bona fide purchaser who conducts due diligence and finds title registered in the vendor's name takes without notice of unrecorded claims.

Court orders

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  1. 1.The suit is dismissed with costs to the 2nd, 3rd and 4th defendants

Authorities

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Cases cited (1)

  • Joreth Limited Vs Lewis Kibue & Others
    Nairobi HCCC No.6206 of 1992
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenneth Chege Kamau & 2 others v Thome Farmers No.5 Ltd & 3 others [2019] KEELC 4555 (KLR)", Case Analysis (2019). ELC No. 1321 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4555/eng@2019-02-07

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