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ELCPartially AllowedNot stated in the judgment text· [2020] KEELC 3659 (KLR)

Hesbon K. Limisi v Delilah Achieng Mathews & 2 others [2020] KEELC 3659 (KLR)

High Court of Kenya (Environment and Land Division)
6 February 2020
2,205 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff sued over Flat F, Block MF 32, Madaraka Estate, Nairobi within LR No. 25980. He claimed he bought the apartment from the 1st defendant under a sale agreement dated 22nd February 2010 for Kshs.4.4 million, completed payment, took possession, and later entered a tenancy agreement with her at Kshs.30,000/- monthly. He sued for a declaration that the 1st defendant's later sale to the 2nd defendant was null and void, a transfer of the flat, vacant possession, mesne profits, general damages for trespass, exemplary damages, interest and costs. The 1st defendant admitted selling to the plaintiff first and was willing to transfer to him. The 2nd defendant claimed he was a bona fide purchaser for value at Kshs.5.5 million, effected transfer with National Housing Corporation consent, but could not register because of the plaintiff's claim. The 3rd defendant (Attorney General as custodian of land records) did not enter appearance. The court framed four issues and found that the plaintiff took possession and paid the price; his agreement was first in time and unrescinded. Relying on the principle that a property cannot have two valid titles and the first in time prevails, the court held the second sale null and void and the occupants trespassers. Judgment was entered for the plaintiff: declaration of nullity, transfer to the plaintiff, vacant possession, mesne profits at Kshs.30,000/- monthly, general damages for trespass of Kshs.300,000/-, interest from judgment, and costs. Exemplary damages were not granted.

Key legal issues

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01

Priority of competing sale agreements over the same property

Holding

The plaintiff's earlier sale agreement of 22nd February 2010 prevails; the subsequent sale to the 2nd defendant is a nullity

Reasoning

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.

p. 3
02

Trespass and damages

Holding

The third party in occupation, placed there by the 2nd defendant, was a trespasser; general damages for trespass of Kshs.300,000/- awarded

Reasoning

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.

p. 3

Legal principles established

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  • A property cannot have two valid title deeds; the first in time prevails

Court orders

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  1. 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. 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. 3.An order for rendering of vacant possession of the suit flat to the plaintiff
  4. 4.An order for payment of mesne profits at the rate of Kshs.30,000/- per month till vacant possession is rendered
  5. 5.General damages for trespass of Kshs.300,000/-
  6. 6.Interest on the mesne profits and damages from the date of judgment till payment in full
  7. 7.Costs of the suit to the plaintiff

Authorities

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Cases cited (3)

  • Lawrence P Mukeri Mungai (Attorney of Francis Mwoki Mwaura and AG & Others
    [2017] eKLR
  • Gitway Investment Ltd vs Laymal Ltd & 3 Others
    2006 eKLR
  • Philip Ayaya Aluchio vs Chrispinus Ngayo
    [2014] eKLR
Jurisdiction invoked
Original civil suit by plaint; no specific constitutional/statutory jurisdictional provision invoked in the judgment

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, "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.