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ELCDismissedPetition dated 12/6/2014 (Nairobi High Court, transferred to Environment and Land Court)· [2020] KEELC 2614 (KLR)

James Bress Muthee v Richard Kipchirchir Too & 21 others [2020] KEELC 2614 (KLR)

Environment and Land Court
5 May 2020
BEB M Eboso
4,655 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled buyers with clean titles and proof of due diligence keep the land, even when a competing inheritance claim surfaced years later.

What this practically means

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Executive summary

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The petitioner, holder of a Grant of Probate over the estate of Elli Gertz, petitioned for declarations that LR No 10008/59 Karen Nairobi belonged to him by transmission, that the 2007 sale and conveyance by the 1st respondent to the 2nd respondent was null and void, that the resulting 99-year leases were invalid ab initio, eviction of the leaseholder respondents, restoration of the register, loss of rental income and general damages. His claim rested on adverse-possession vesting orders obtained by the 1st respondent in HCCC No 1504 of 2002, which the High Court (Aganyanya J) set aside on 2/8/2007, and on orders by Kihara Kariuki J marking the suit as abated in 2009. The court framed four issues. First, it held it lacked jurisdiction to entertain constitutional claims premised on pre-2010 judicial orders, since the 2010 Constitution is not retrospective and the Environment and Land Court exercises no oversight over decisions of the pre-2010 High Court. Second, on the evidence, the 2nd respondent was an innocent purchaser for value: the vesting orders were still in force when it bought, Aganyanya J's order was never registered, and no fraud was proved. The 3rd-18th respondents similarly proved due diligence and purchase at market value, so their lease titles could not be impeached under Section 26 of the Land Registration Act. Third, the court found the petitioner had concealed material facts in the succession cause by distributing property no longer part of the estate, and had pursued a personal rather than estate claim. The petition failed wholly and the petitioner was ordered to bear its costs.

Key legal issues

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01

Jurisdiction over constitutional claims against pre-2010 High Court judicial orders

Holding

The court has no jurisdiction to entertain a claim of constitutional breach by a pre-2010 High Court judge; the 2010 Constitution is not retrospective and the ELC does not exercise oversight over High Court decisions

Reasoning

The petitioner alleged breaches occurring in 2009 under the 2010 Constitution, which was not in force then and was not intended to apply retrospectively. The ELC's jurisdiction is limited to environment and land disputes and sits at par with the pre-2010 High Court, without oversight over its decisions. Redress lay in appeal or review to the Court of Appeal, which the petitioner did not pursue for five years.

p. 4
02

Whether the 2nd respondent was an innocent purchaser for value

Holding

Yes; it bought for valuable consideration from a registered proprietor with no registered encumbrance, with no evidence of fraud

Reasoning

The vesting orders in favour of the 1st respondent were still in force at the time of sale; Aganyanya J's setting-aside order was never registered against the title. The 2nd respondent paid Kshs 36,725,000, conducted due diligence, and was not party to HCCC No 1504 of 2002. No evidential material supported the fraud allegation, and the deceased did nothing to protect her interest.

p. 5
03

Whether the 3rd-18th respondents were innocent purchasers of the town houses

Holding

Yes; their uncontroverted evidence established due diligence, market-value purchase and registered leases

Reasoning

The purchasers searched the register, found the 2nd respondent registered as proprietor without encumbrance, bought at market value, and obtained registered 99-year leases with vacant possession from 2008. The petitioner adduced no evidence to discount their innocence. Their titles are protected under Sections 24 and 26 of the Land Registration Act.

p. 5
04

Whether the petitioner was entitled to the reliefs sought

Holding

No; the Certificate of Confirmation of Probate was obtained by concealment of material facts and the petition was a personal, not estate, claim

Reasoning

The petitioner knew at the time of the succession cause that the suit property was no longer registered in Elli Gertz's name, had been developed and sold, yet misled the High Court into distributing it. Proper recourse was to sue on behalf of the estate for recovery before seeking distribution. His personal claim was unsustainable and all prayers failed.

p. 5

Legal principles established

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  • The Constitution of Kenya 2010 is not retrospective and cannot be invoked to ventilate pre-2010 grievances
  • The Environment and Land Court has no oversight jurisdiction over decisions of the pre-2010 High Court; aggrieved parties must appeal or seek review
  • Elements of the bona fide purchaser for value doctrine as stated in Katende v Haridar & Company Limited
  • The register shall not be rectified to affect the title of an innocent proprietor without knowledge of, or contribution to, the fraud or mistake
  • A registered proprietor's title cannot be impeached under Section 26 of the Land Registration Act where the purchaser is an innocent purchaser for value

Court orders

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  1. 1.The petition is dismissed in its entirety
  2. 2.The petitioner shall bear costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)
  • Constitution of Kenya, 2010Article 22(2)
  • Constitution of Kenya, 2010Article 60
  • Land Registration ActSection 24
  • Land Registration ActSection 26
  • Land Registration ActSection 80
  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSection 4(4)

Cases cited (4)

  • Katende -vs- Haridar & Company Limited
    [2008] 2 E.A 173
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
  • Richard Kipchirchir Too v Elli Gertz (OS)
    Nairobi HCCC No 1504 of 2002
  • In the matter of the Estate of Elli Herta Klara Gertz aka Elli Herta Clara Gertz
    Nairobi High Court Succession Cause No 688 of 2009
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); petition originally lodged in the High Court under Articles 22, 40, 48 and 50 and transferred to this court

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, "James Bress Muthee v Richard Kipchirchir Too & 21 others [2020] KEELC 2614 (KLR)", Case Analysis (2020). Petition dated 12/6/2014 (Nairobi High Court, transferred to Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2614/eng@2020-05-05

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