Joseph Mbau Gitau v Joreth Limited & another [2020] KEELC 370 (KLR)
The bottom line
#A Nairobi court returned occupied family land to its owner because the buyer never checked who was living on it.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit property was lawfully repossessed and sold to the 2nd Defendant
The repossession and sale was not proved; no evidence was adduced by the 1st Defendant to support its defence of repossession
The court noted there was no dispute that plot No. 409 was allocated to the Plaintiff's father and transferred to the Plaintiff, and that the Plaintiff was in possession. The 1st Defendant adduced no evidence supporting its claim of repossession, so its pleadings carried no evidential weight. The 2nd Defendant admitted carrying out no due diligence and made no inquiry about the napier grass and occupation, so the alleged repossession and sale could not stand.
Whether the 2nd Defendant was an innocent purchaser for value without notice
She was not, because she bought occupied land without any due diligence
The 2nd Defendant testified she was not shown any title documents and trusted the directors of the 1st Defendant. On cross-examination she confirmed she found napier grass grown on the property but did not ask who had planted it. The court held that a diligent investor would have been alarmed by occupation of the land, and therefore she could not rely on the defence of innocent purchaser for value without notice.
Whether the court's earlier decision in Kenneth Chege Kamau v Thome Farmers No.5 Limited compelled dismissal of the Plaintiff's case
That decision was distinguishable on the facts and did not apply
The Defendants urged the court to follow its prior findings and dismiss the suit. The court distinguished the earlier case: the plaintiffs there were not in possession of the suit property, the purchasers there had carried out due diligence and found the land registered in the seller's name and vacant, and the claim there was of fraudulent registration. In the present case there was no due diligence and no evidence of lawful repossession, so the precedent did not govern.
Legal principles established
#- Pleadings are not evidence unless backed by testimony; a party that adduces no evidence in support of its defence can attach little weight to its allegations
- A purchaser of occupied land who conducts no due diligence cannot qualify as an innocent purchaser for value without notice
Court orders
#- 1.A permanent injunction restraining the Defendants, their servants, employees, agents or whosoever from transferring, delineating, transmitting or registering any transfer executed between themselves or any other parties, or in any other manner interfering with plot No.409 now known as LR No.13330/171 other than transfer to the Plaintiff
- 2.An order directing the 1st Defendant to execute a transfer in favour of the Plaintiff in respect of LR No.13330/171
- 3.Costs of the suit to be paid by the Defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to ownership, occupation and title to land
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Pravinchandra Jamnadas Kakad v Lucas Mumia Oluoch[2015] KEHC 3444 (KLR)13 Jul 2015
- Drilling & Equipment Services Ltd (Defendant/Applicant) v Atlas Copco Kenya Ltd (Plaintiff/Respondent) - Chamber Summons application to set aside interlocutory judgment[2014] KEHC 8667 (KLR)31 Mar 2014
Cite this brief
#Cite this brief
Caselaw, "Joseph Mbau Gitau v Joreth Limited & another [2020] KEELC 370 (KLR)", Case Analysis (2020). ELC Suit No. 586 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/370/eng@2020-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.