Hesbon K. Limisi v Delilah Achieng Mathews & 2 others [2020] KEELC 3659 (KLR)
The bottom line
#A Kenyan court ruled that the first buyer of a property keeps it, cancelling a later sale of the same flat.
What this practically means
#Executive summary
#Key legal issues
#Priority of competing sale agreements over the same property
The plaintiff's earlier sale agreement of 22nd February 2010 prevails; the subsequent sale to the 2nd defendant is a nullity
The court found the plaintiff purchased the apartment for Kshs.4.4 million, took possession, and entered a tenancy agreement with the 1st defendant, unchallenged evidence. The 2nd defendant's agreement came much later and the 1st defendant never rescinded the first contract. Relying on the Court of Appeal authority, the first title in time prevails. The subsequent sale was therefore illegal and void.
Trespass and damages
The third party in occupation, placed there by the 2nd defendant, was a trespasser; general damages for trespass of Kshs.300,000/- awarded
Having found the plaintiff entitled to the apartment, the court held that the 1st defendant and the third party in occupation were trespassers. Guided by Philip Ayaya Aluchio v Chrispinus Ngayo on the measure of damages for trespass, and given the apartment let at Kshs.30,000/- monthly, the court considered Kshs.300,000/- a reasonable nominal award.
Legal principles established
#- A property cannot have two valid title deeds; the first in time prevails
Court orders
#- 1.A declaration that the sale agreement entered into between the 1st defendant and the 2nd defendant on 10th May 2013 for Flat F Block MF 32, Madaraka estate, Nairobi within LR No. 25980 is an illegality and null and void by virtue of the prior agreement dated 22nd February 2010 between the plaintiff and 1st defendant
- 2.An order directing the 3rd defendant to effect a transfer of the suit flat to the plaintiff's name, with the deputy registrar of the high court to execute the transfer on behalf of the 1st defendant if need be
- 3.An order for rendering of vacant possession of the suit flat to the plaintiff
- 4.An order for payment of mesne profits at the rate of Kshs.30,000/- per month till vacant possession is rendered
- 5.General damages for trespass of Kshs.300,000/-
- 6.Interest on the mesne profits and damages from the date of judgment till payment in full
- 7.Costs of the suit to the plaintiff
- Jurisdiction invoked
- Original civil suit by plaint; no specific constitutional/statutory jurisdictional provision invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hesbon K. Limisi v Delilah Achieng Mathews & 2 others [2020] KEELC 3659 (KLR)", Case Analysis (2020). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3659/eng@2020-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.