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ELCDismissedELC No. 689 of 2011· [2020] KEELC 1129 (KLR)

Lilian Wanjiru Njoroge v Joreth Limited & another [2020] KEELC 1129 (KLR)

Environment and Land Court
24 September 2020
LKL. Komingoi
3,043 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 lost her claim because she could not trace her title back to the registered owner or fully pay for the plot, so she got nothing.

What this practically means

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Executive summary

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The plaintiff sued Joreth Limited (1st defendant) and Peter Gakure Muriuki (2nd defendant), seeking a permanent injunction, a declaration that the 17th August 2012 transfer of LR No. 13330/169 was fraudulent and null and void with cancellation of the transfer, an order for transfer of the property to her, eviction of the 2nd defendant, costs and interest. Her claim was founded on a purchase of Plot No. 16 from Antony Kariuki Githendu (who had bought from Walter Mbugua Wairuiko of Thome Farmers No.5 Limited) for Kshs.1,000,000 in 2007, after which she made part payments towards title processing through M/S Kimani Kahiro Advocates, the 1st defendant's advocates. The 1st defendant denied selling to Thome Farmers No.5 Limited, relying on a consent order in HCCC 6206 of 1992 requiring members to pay Kshs.200,000 for titles. The 2nd defendant said he bought from the 1st defendant and built a home, the plot having been misnumbered. The court framed five issues and found that the suit property was registered in the 1st defendant's name; that no sale to Thome Farmers No.5 Limited was proved; and that the plaintiff failed to prove her case on a balance of probabilities, having not paid in full. Applying Vijay Morjaria, the court held fraud was not distinctly proved and no collusion was established. Although the 2012 transfer offended the doctrine of lis pendens, cancellation would serve no purpose as the 2nd defendant was the rightful owner. The suit was dismissed with costs to the defendants, with the plaintiff encouraged to seek an alternative plot from the 1st defendant.

Key legal issues

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01

Whether Thome Farmers No.5 Limited bought the land from Joreth Limited, underpinning the plaintiff's chain of title

Holding

No sale between Joreth Limited and Thome Farmers No.5 Limited was proved; no sale agreement or title in Thome Farmers' name was produced

Reasoning

The plaintiff relied on a directors' resolution agreeing in principle to sell, but produced no sale agreement and Thome Farmers No.5 Limited never had a title registered in its name. PW2 confirmed he bought from Thome Farmers No.5 Limited, not from Joreth Limited. The plaintiff's chain of title from the 1st defendant therefore failed.

p. 3
02

Whether the transfer to the 2nd defendant was fraudulent or in collusion to defeat the plaintiff's claim

Holding

Fraud and collusion were not proved; the 2nd defendant is the rightful owner, having paid for the plot and constructed a house

Reasoning

Applying Vijay Morjaria v Nansingh Madhusingh Darbar, fraud must be distinctly alleged and proved, not inferred. The 2nd defendant bought from the 1st defendant, was shown the plot, paid, obtained title (albeit to LR 13330/169 instead of /170 due to the 1st defendant's numbering mistake), and built a home. No collusion between the defendants was demonstrated.

p. 3
03

Whether the transfer effected on 17th August 2012 during the pendency of the suit violated the doctrine of lis pendens and should be cancelled

Holding

Lis pendens applied, but cancellation would serve no purpose as the 2nd defendant is the rightful owner and the plaintiff failed to prove entitlement

Reasoning

The court accepted that the transfer during the pendency of the suit breached lis pendens, which required maintenance of the status quo. However, since the plaintiff failed to prove entitlement to the suit property and the 2nd defendant was found to be the rightful owner, cancelling the title would serve no practical purpose.

p. 4

Legal principles established

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  • Fraud must be specifically pleaded, its particulars stated on the face of the pleadings, and fraudulent conduct distinctly alleged and distinctly proved; it cannot be inferred from facts
  • The doctrine of lis pendens requires that the status quo be maintained until a pending suit is heard and determined
  • Civil claims must be proved on a balance of probabilities

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the defendants

Authorities

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Legislation

  • Law of Contract Actsection 3

Cases cited (2)

  • Carol Silcock vs Kassim Sharrif Mohamed
    [2013] eKLR
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) – original jurisdiction over land disputes

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, "Lilian Wanjiru Njoroge v Joreth Limited & another [2020] KEELC 1129 (KLR)", Case Analysis (2020). ELC No. 689 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1129/eng@2020-09-24

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