Tom L Wanambisi v Dickson W. Babandege & 2 others [2021] KEELC 74 (KLR)
The bottom line
#A landowner who lost his farm at auction failed to prove fraud, so the buyer kept the title and he was ordered to leave within three months.
What this practically means
#Executive summary
#Key legal issues
#Whether a valid public auction of the charged land took place on 16th April 2010
Yes - the court found the auction was conducted as advertised and the 1st defendant was the highest bidder
The plaintiff, as the party asserting no auction took place, bore the burden of proving it. The defendants led evidence of the notices, advertisement and Memorandum of Sale. The plaintiff raised the complaint of no auction only two years later in proceedings, without ever writing to the 2nd defendant about it, which the court treated as an afterthought. The court found the auction was procedural and above board.
Whether the 1st defendant's title could be cancelled for fraud or illegality
No - the title is indefeasible; the 1st defendant is an innocent purchaser for value
Section 26(1) of the Land Registration Act permits challenge only on the ground of fraud or misrepresentation to which the proprietor is proved to be a party, or where title was acquired illegally, unprocedurally or through a corrupt scheme. The plaintiff's evidence fell far short of proving fraud or illegality against the 1st defendant. Even if fraud existed, the 1st defendant was not involved.
Whether the chargee complied with the statutory regime governing sale of charged land
Yes - statutory notice under the repealed Registered Land Act and the Agricultural Finance Corporation Act was served and no Land Control Board consent was required for a transfer on exercise of a mortgagee's statutory power of sale
The applicable law in 2010 was the repealed Registered Land Act, not the Land Act 2012. The Notification of Sale dated 4th February 2010 was signed by the plaintiff as debtor, which he admitted in cross-examination. A foreclosure notice was sent by registered post under Section 33(1) of the AFC Act. Since the 1st defendant acquired the land through a public auction pursuant to a mortgagee's statutory power of sale, no Land Control Board consent was required.
Whether the 1st defendant trespassed on land parcels 89 and 90 and is liable for damages of Kshs. 5,203,550.00
No - the claim was dismissed; if anything the plaintiff became the trespasser on parcel 89 after the auction and registration
None of the plaintiff's witnesses placed the 1st defendant at the scene of the 29th December 2010 invasion, and none identified him among the armed men. He had no interest in parcel 90 and no motive to invade it. Once registered as proprietor of parcel 89, he could not trespass on his own land. The standard of proof on a balance of probabilities requires cogent, clear and certain evidence, not conjecture or speculation.
Whether the 1st defendant was entitled to mesne profits
No - the mesne profits claim failed for want of specific pleading and proof
A claim for mesne profits is a claim in special damages which must be specifically pleaded and strictly proved. The 1st defendant did not specifically plead the claim and led no evidence of the use and occupation value of the land. The remedy was therefore unavailable and that head of the Counter-Claim was dismissed.
The court's jurisdiction over a dispute arising from a chargee's sale
The court had jurisdiction because the dominant issue was trespass to land, not the settlement of dues
Relying on its earlier ruling of 20th September 2018, the court distinguished the Court of Appeal decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, which excludes mortgage and charge dues disputes from the ELC's jurisdiction, holding that the plaintiff's claim was essentially one of trespass to land and cancellation of title. No appeal was preferred against that ruling.
Legal principles established
#- A registered proprietor's title is prima facie absolute and indefeasible and can only be challenged on the grounds in Section 26(1) of the Land Registration Act (fraud or misrepresentation to which the proprietor is proved to be a party, or illegal, unprocedural or corrupt acquisition)
- A bona fide purchaser for value whose title was acquired through fraud or irregularity perpetrated before he came into the picture holds an unchallengeable title
- Jurisdiction is a threshold issue which a court must determine at the earliest opportunity and may be raised by the court on its own motion
- An irregularity in the conduct of a public auction entitles the aggrieved party to damages against the auctioneer rather than invalidation of the sale
- A party asserting that no auction took place bears the burden of proving that fact, and evidence must be cogent, clear and certain, not conjecture or speculation
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.Judgment entered for the 1st defendant against the plaintiff as per his Counter-Claim: the plaintiff shall vacate the land parcel NO NDIVISI/MAKUSELWA/89 within three (3) months from the date of the Judgment or be evicted therefrom
- 3.An order of permanent injunction restraining the plaintiff by himself, his agents, workers, servants, or whomsoever acting through him from entering, occupying, trespassing or in any other way interfering with the 1st defendant's use and occupation of the land parcel NO NDIVISI/MAKUSELWA/89
- 4.The claim for mesne profits is dismissed
- 5.The plaintiff shall meet the defendants' costs of the dismissed suit
- 6.The plaintiff shall also meet the 1st defendant's costs of the Counter-Claim
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land; the dominant issue held to be trespass to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tom L Wanambisi v Dickson W. Babandege & 2 others [2021] KEELC 74 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/74/eng@2021-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.