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ELCPartially AllowedE.L.C. Case No. 1534 of 2013· [2019] KEELC 4730 (KLR)

George Wachira Kihoi v Rose Njoki Kamau & another [2019] KEELC 4730 (KLR)

Environment and Land Court
23 January 2019
KBK. Bor
877 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi land buyer won back his Kshs. 5 million from the seller, but lost against the co-operative because he never did a search to verify ownership.

What this practically means

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Executive summary

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The Plaintiff bought L.R. No. Nairobi Block 122/31 from the 1st Defendant for Kshs. 5,050,000.00 under a sale agreement dated 7/10/2013, relying on a letter on the 2nd Defendant's notepaper, written by its Secretary Ibrahim Maingi to the Commissioner of Lands, confirming that the 1st Defendant owned the plot. When the property was not transferred, he sued both Defendants seeking special damages of Kshs. 5,050,000.00 with interest at 17% per annum, a declaration that he was the legal owner, a permanent injunction, or in the alternative allotment of an alternative plot of equal value with general damages and costs. Only the 2nd Defendant filed a defence, denying the letter's authenticity and contending it was fraudulently authored by its former Secretary without the committee's authority, and that the plot had in fact been allotted to a third party. The court found the Plaintiff had not proved that he conducted a search confirming the 1st Defendant's ownership, nor that the property was registered in her name, and that it had been allocated to a third party. The claim against the 2nd Defendant was dismissed with costs. Judgment was nevertheless entered against the 1st Defendant, who did not appear, for the full purchase price of Kshs. 5,050,000.00 with interest at court rates and costs, the court holding that the Plaintiff's remedy lay against the party with whom he contracted and to whom he paid the consideration.

Key legal issues

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01

Whether the Plaintiff proved bona fide purchase of the Suit Property from the 1st Defendant

Holding

The Plaintiff failed to prove a search confirming the 1st Defendant's ownership; the property had been allotted to a third party, so his bona fide purchaser claim against the 2nd Defendant failed.

Reasoning

The court found no evidence that the property was registered in the 1st Defendant's name at the time of purchase. The 2nd Defendant had allotted the land to a third party, and its Secretary's letter was denounced as unauthorised. The Plaintiff's remedy lay against the 1st Defendant who received the purchase price.

p. 2
02

Liability of the 1st Defendant for refund of the purchase price

Holding

Judgment entered against the 1st Defendant for the full purchase price with interest and costs.

Reasoning

The 1st Defendant entered the sale agreement, received the full consideration of Kshs. 5,050,000.00, and failed to transfer the property or appear to defend the claim. She was accordingly liable to refund the purchase price with interest at court rates.

p. 2

Legal principles established

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  • A purchaser must verify ownership through a search; reliance on a letter allegedly issued without the co-operative's authority does not establish the seller's title against the co-operative.
  • A buyer's remedy lies against the party with whom he contracted and to whom he paid the purchase price.

Court orders

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  1. 1.Dismissal of the Plaintiff's claim against the 2nd Defendant with costs to the 2nd Defendant
  2. 2.Judgment for the Plaintiff against the 1st Defendant for Kshs. 5,050,000.00 together with interest at court rates and costs of the suit
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (original first-instance suit)

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, "George Wachira Kihoi v Rose Njoki Kamau & another [2019] KEELC 4730 (KLR)", Case Analysis (2019). E.L.C. Case No. 1534 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4730/eng@2019-01-23

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