Sospeter Murimi Karitu v Martin Muriuki Mugo [2020] KEELC 3117 (KLR)
The bottom line
#A man who occupied land for over 50 years lost it completely because his original purchase agreement was legally invalid.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant held the suit land in trust for his father
Not proved; the plaintiff adduced no evidence of any trust
The court held that allegations of a trust must be established by evidence. The plaintiff, who alleged the land was registered in the defendant's name in trust for Mugo Kario, made no effort to adduce evidence of the existence of such a trust. The claim of an express or customary trust therefore failed on proof.
Whether there was privity of contract between plaintiff and defendant
None; the 1960 sale agreement with the defendant's father could not bind the defendant, who was a minor without capacity or authority
The sale agreement was between the plaintiff and Mugo Kario, not the defendant. Section 114 of the repealed Registered Land Act required express authority by power of attorney for anyone acting for a minor. The defendant, born in 1957, was about ten years old at the material time and no power of attorney was availed; the agreement was illegal and unenforceable against him.
Whether the plaintiff acquired title by adverse possession
No; his occupation was founded on an illegal agreement and was therefore trespass
Adverse possession requires open, quiet and uninterrupted occupation for at least 12 years. Because the sale agreement under which the plaintiff entered was declared illegal and void, his entry and occupation were not founded on any lawful right; he was an illegal occupier and trespasser and could not advance a claim for adverse possession.
Whether the plaintiff's registration and title were regular and lawful
No; the title flowed from a consent judgment set aside on 6 November 2014 and was a nullity liable to cancellation and rectification of the register
The plaintiff's title derived from the consent letter of 22 December 1988 adopted as an order on 24 February 1992. That consent judgment and all consequential orders were set aside on 6 November 2014, an order the plaintiff never appealed beyond filing a Notice of Appeal. The transfer and title were therefore nullities, and the register was rectified under Section 80 of the Land Registration Act.
Legal principles established
#- A trust over registered land must be proved by evidence
- A contract cannot be enforced against a person who was not a party to it, and a minor lacks capacity to consent to a sale of land absent express authority by power of attorney
- Adverse possession requires open, quiet and uninterrupted occupation for not less than 12 years
- Where the consent judgment founding a transfer is set aside, the resulting transfer and title is a nullity and the register may be rectified under Section 80 of the Land Registration Act to restore the original owner
Court orders
#- 1.The plaintiff's suit as against the defendant dismissed with costs
- 2.The register to land parcel No. MWERUA/KANYOKORA/144 rectified by cancelling the plaintiff's registration and replacing it with the name of the defendant, Martin Muriuki Mugo
- 3.An order evicting the plaintiff from the suit land parcel No. MWERUA/KANYOKORA/144
- 4.The O.C.P.D. Kirinyaga to supervise the eviction of the plaintiff and ensure order and security is maintained
- 5.A permanent injunction restraining the plaintiff, his family, agents and servants from interfering with the suit land after eviction
- 6.The plaintiff to pay damages for trespass at the sum of Ksh. 100,600/-
- 7.The costs of the suit and the counterclaim to be borne by the plaintiff
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act following transfer of the file by Hon. Lady Justice L. Waithaka
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sospeter Murimi Karitu v Martin Muriuki Mugo [2020] KEELC 3117 (KLR)", Case Analysis (2020). HCCC No. 49 of 1987 (formerly High Court at Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3117/eng@2020-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.