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ELCPartially AllowedELC Civil Case No. 637 of 2013· [2019] KEELC 4624 (KLR)

Alice Kamonya Lidodo & Peris Wambui Njihia v Mariru Park Limited [2019] KEELC 4624 (KLR)

Environment and Land Court
7 February 2019
LKL. Komingoi
1,099 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Nairobi court ruled that a company that sold the same plot to two different buyers must honour both sales and hand over the title deed.

What this practically means

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Executive summary

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Two plaintiffs sued Mariru Park Limited in the Environment and Land Court at Nairobi, seeking a permanent injunction against further dealings with the suit premises, declarations that each was a bona fide purchaser for value, an order compelling the defendant to facilitate issuance of the title deed, damages, and costs. The 1st plaintiff testified she bought a plot from the defendant in 1993, paying Kshs 34,000/- plus Kshs 3,000/- and receiving receipts, a ballot card and a plot certificate. The 2nd plaintiff bought Plot No. 223 from the defendant in 2009 for Kshs 15,000/-, receiving a sale agreement, plot certificate and receipt. Each later discovered the other claiming the same plot; the dispute surfaced when the 2nd plaintiff went to develop the plot and met the 1st plaintiff, and the matter was reported before the Assistant Chief. The defendant filed a statement of defence but did not appear at the hearing despite service, and the matter proceeded exparte on 16th November 2016. The court framed a single issue: whether the plaintiffs were bona fide purchasers for value of the suit plot within land parcel number 7659/8 Kasarani. Finding the plaintiffs' documents genuine and their evidence uncontroverted, the court held both were bona fide purchasers, that the defence was a sham of mere denials, and that particulars of fraud pleaded in paragraph 7 of the plaint were proved, the defendant having deliberately double-sold the plot and issued certificates to both. Judgment was entered for the plaintiffs: a permanent injunction issued, declarations of bona fide purchase made, the defendant ordered to facilitate issuance of the title deed with the Deputy Registrar empowered to execute documents in default, and costs with interest awarded. General damages were declined because no loss was demonstrated.

Key legal issues

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01

Whether the plaintiffs are bona fide purchasers for value of the suit plot

Holding

Both plaintiffs were held to be bona fide purchasers for value; the defendant sold the same plot twice and issued ownership certificates to both plaintiffs intentionally

Reasoning

The court considered the documents produced by the plaintiffs - receipts, ballot card, plot certificates and sale agreement - found them genuine and originating from the defendant, and noted the evidence was uncontroverted as the defendant adduced none. The plaintiffs bought in 1993 and 2009 respectively. The defendant sold the plot to the 2nd plaintiff without disclosing the initial sale to the 1st plaintiff, which the court found intentional, and particulars of fraud in paragraph 7 of the plaint were proved.

p. 2
02

Whether the defendant's statement of defence displaced the plaintiffs' case

Holding

The defence, being a mere denial in every paragraph and unsupported by evidence, was dismissed as a sham

Reasoning

The defendant entered appearance and filed a statement of defence dated 18th July 2013, but did not attend the hearing despite being served, and the matter proceeded exparte. The court examined the defence and found each paragraph a mere denial. With no evidence to controvert the plaintiffs' testimony and documents, the plaintiffs' case stood unproved against, satisfying the balance of probabilities standard.

p. 2

Legal principles established

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  • A statement of defence consisting of mere denials, unaccompanied by evidence, may be treated as a sham and the plaintiff's uncontroverted evidence accepted
  • A plaintiff who proves payment and issuance of a plot certificate by the vendor, on uncontroverted evidence, establishes bona fide purchaser status on a balance of probabilities

Court orders

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  1. 1.A permanent injunction issued restraining the defendant, its agents, servants and/or directors and/or any other person from any further dealings, transferring, selling, alienating or trespassing on the suit premises, and subsequent sales rendered unlawful
  2. 2.A declaration that the 1st plaintiff is the first bona fide purchaser for value of the suit premises within Plot No LR 7659/8 Kasarani and is entitled to the same and/or compensation at current market value
  3. 3.A declaration that the 2nd plaintiff is a bona fide purchaser for value without notice within Plot No. LR 7659/8 Kasarani and is entitled to the same without prejudice to the 1st plaintiff's claim and/or compensation at current market value
  4. 4.The defendant ordered to facilitate the issuance of the title deed to the rightful party, and in default the Deputy Registrar of the court to execute the necessary documents
  5. 5.The plaintiffs awarded costs of the suit and interests
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (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, "Alice Kamonya Lidodo & Peris Wambui Njihia v Mariru Park Limited [2019] KEELC 4624 (KLR)", Case Analysis (2019). ELC Civil Case No. 637 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4624/eng@2019-02-07

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