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ELCDismissed· [2020] KEELC 2008 (KLR)

Sammy Mutuku Mbusya v Patrick Kiparty Wakimwa & another [2020] KEELC 2008 (KLR)

Environment and Land Court of Kenya
12 June 2020
OAO. A. Angote
3,658 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A land buyer lost his Kenyan court case because his Power of Attorney wasn't registered and he couldn't prove 12 years of open possession.

What this practically means

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Executive summary

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The Plaintiff sued the Defendants claiming to have purchased land parcel Machakos/Matuu/4154 from the 1st Defendant on 7th July 2002 at Kshs 100,000 through Patrick Musyoki Kioko, acting under a Power of Attorney dated 16th June 2002. He took possession, built shops and residential rooms, and sought a permanent injunction, declarations of ownership or alternatively adverse possession, an order for transfer and rectification of the register, compensation, and general damages. The Defendants denied the Power of Attorney (alleging forgery), denied fraud, and averred the 2nd Defendant was a bona fide purchaser for Kshs 4.7 million in 2016, with the Defendants seeking declaration of the 2nd Defendant's ownership, an injunction and eviction. The court framed four issues: validity of the sale agreement, fraud, adverse possession, and costs. It held that the Power of Attorney, being unregistered and not identifying the suit property, was null and void, and since Patrick Kioko held no proprietary interest, the sale to the Plaintiff was a nullity. Fraud against the 2nd Defendant's registered title under Section 26(1) of the Land Registration Act was not proved. On adverse possession, the Plaintiff failed to produce approved development plans or photographs proving peaceful, open and continuous possession for 12 years adequate in continuity, publicity and extent. The court dismissed the Amended Plaint dated 3rd May 2018 with costs.

Key legal issues

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01

Validity of the Power of Attorney and sale agreement

Holding

The Power of Attorney was null and void as it was unregistered and did not identify the suit property; the sale was therefore a nullity

Reasoning

The Power of Attorney dated 16th June 2002 made no reference to the suit property and was not registered as required by law and case law. The sale agreements also made no reference to parcel Machakos/Matuu/4154. Since Patrick Kioko held no proprietary interest, no title could pass to the Plaintiff.

p. 5
02

Fraud against the 2nd Defendant's title

Holding

Fraud was not proved; the 2nd Defendant's registered title under Section 26(1) of the Land Registration Act stands

Reasoning

The Plaintiff failed to discharge the burden of proving fraud, mistake or a corrupt scheme in the 1st Defendant's sale to the 2nd Defendant, who conducted a search and was registered after Land Control Board consent and transfer execution.

p. 5
03

Adverse possession

Holding

The Plaintiff did not prove 12 years of adverse possession

Reasoning

Although the Plaintiff claimed possession since 2002 and collection of rent, approved development plans and photographs were never produced to prove permanent developments or continuous, open and hostile possession adequate in continuity, publicity and extent for the statutory period.

p. 7

Legal principles established

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  • A Power of Attorney over immovable property that does not specify the land and is not registered is ineffectual, null and void
  • A seller without proprietary interest cannot pass good title
  • A registered proprietor's title can only be challenged on fraud or misrepresentation to which they are party, or where acquired illegally, unprocedurally or through a corrupt scheme (Section 26(1) Land Registration Act)
  • A claimant to adverse possession must prove peaceful, open and continuous possession adequate in continuity, publicity and extent

Court orders

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  1. 1.Dismissal of the Plaintiff's Amended Plaint dated 3rd May, 2018 with costs

Authorities

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Legislation

  • Land Registration ActSections 26(1) and 80
  • Limitation of Actions Act, Chapter 22 of the Laws of KenyaSections 7, 13, 17 and 38(1)

Cases cited (9)

  • Peter Mbiri Michuki vs. Samuel Mugo Michuki
    (2014) eKLR
  • Francis Mwangi Mugo vs. David Kamau Gathogo
    (2007)/(2017) eKLR
  • Stephen Njihia Mbugua vs. Stephen Kihara Muchai & 2 Others
    (2015) eKLR
  • Alice Chemutai Too vs. Nickson Kipkimu Korir & 2 Others
    (2015) eKLR
  • Nahashon Muriithi Jeremiah vs. Nelson Mwangi Kinguru
    (2015) eKLR
  • Kimani Ruchine vs. Swift Rutherford & Co. Ltd
    [1980] KLR
  • Teresa Wachuka Gachira vs. Joseph Mwangi Gachira
    (2009) eKLR
  • Benjamin Kamau Murima & Others vs. Gladys Njeri
    Civil Appeal No. 213 of 1996
  • Karnataka Board of Wakf vs. Government of India & Others
    (2004) 10 SCC 779
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over claims relating to title and occupation of land (2nd Defendant challenged jurisdiction as lying with the Principal Magistrate's Court at Kithimani)

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, "Sammy Mutuku Mbusya v Patrick Kiparty Wakimwa & another [2020] KEELC 2008 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2008/eng@2020-06-12

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