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ELCPartially AllowedELCA Case No. 8 of 2019· [2021] KEELC 250 (KLR)

Gordon Otieno Muna v Dennis Ongeso Ojany & 4 others [2021] KEELC 250 (KLR)

Environment and Land Court
17 December 2021
4,008 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court cancelled land transfers made over a registered caution, protecting a 1986 buyer's rights while refusing his late specific performance claim.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kisumu against the dismissal by the trial magistrate of the appellant's claim over parcel Kisumu/Kadero-Got Nyabondo/3556, which he purchased in 1986 from Karilus Ojany Abondo, now deceased. The appellant had registered a caution in 2015 to protect his interest, but following a succession cause the land was registered in the names of the 1st and 2nd respondents and then sold to the 3rd respondent, notwithstanding the subsisting caution. The trial court had held the suit statute-barred under section 7 of the Limitation of Actions Act. Ombwayo J framed six issues and allowed the appeal. He held that the transfers effected while the caution was registered were highly irregular, illegal, null and void under sections 71, 72 and 73 of the Land Registration Act; that the claim, being founded on fraud, accrued on the 2016 registrations and was filed within the three-year limitation period, so was not statute-barred; and that the 3rd respondent, who failed to inspect the green card showing the caution, was not an innocent purchaser for value, the caution constituting notice. The court found fraud by the 1st and 2nd respondents and the Land Registrar, invoked constructive trust and proprietary estoppel in the appellant's favour, and recognised his rights in the land. However, specific performance was refused as sought over 30 years after the 1986 agreement. The appeal was allowed, the post-caution register entries were declared null and void and cancelled, a permanent injunction issued, and costs of the appeal and lower court were awarded to the appellant.

Key legal issues

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01

Validity of transfers effected while a caution was registered

Holding

The registration of the 1st, 2nd and 3rd respondents while the appellant's caution was registered was highly irregular, illegal, null and void.

Reasoning

Sections 71, 72 and 73 of the Land Registration Act protect a cautioner's registered interest. Section 72(2) bars registration of dispositions inconsistent with a caution except with the cautioner's consent or by court order. The green card showed no removal of the caution; the respondents argued the transfer flowed from a court order in the succession cause, but the court found the transactions effected while the caution was still registered and therefore void.

p. 4
02

Limitation of actions

Holding

The suit was not statute barred because the cause of action arose on the fraudulent registrations of 27/6/2016 and 24/8/2016, and a fraud-based action carries a 3-year limitation period.

Reasoning

The trial magistrate had applied section 7 of the Limitation of Actions Act (12 years) from the 1986 agreement. On appeal, the court recharacterised the claim as one based on fraud and irregularity, holding the cause of action accrued upon registration of the respondents as owners in 2016. The suit filed on 3/8/2017 was within the 3-year period for fraud.

p. 4
03

Innocent purchaser for value without notice

Holding

The 3rd respondent was not an innocent purchaser for value because the green card showed an existing, unremoved caution, which constituted notice.

Reasoning

Due diligence requires a purchaser to inspect the register. The green card revealed the caution on its face; failure to peruse it amounted to a failure of due diligence. The caution operated as notice of the appellant's interest, defeating the claim of title free of encumbrances.

p. 4
04

Fraud by the respondents and the Land Registrar

Holding

Registering the property in the names of the 1st and 2nd respondents while the caution existed constituted fraud on the part of those respondents and the Land Registrar.

Reasoning

The court found the registrations were made despite the subsisting caution, with no evidence of its lawful removal. This amounted to fraud attributable to the 1st and 2nd respondents and the Land Registrar.

p. 5
05

Constructive trust and proprietary estoppel

Holding

The appellant acquired rights and interests in the suit land attracting the equitable doctrines of constructive trust and proprietary estoppel.

Reasoning

The appellant established purchase from the deceased, payment of Kshs. 8,300/-, and possession and cultivation from the date of purchase, corroborated by PW2, a neighbouring landowner. The 1st and 2nd respondents never lived on or utilised the land, and their evidence on third-party occupation was unsupported as no such persons were called to testify.

p. 5
06

Specific performance

Holding

Specific performance was not available because the relief was sought more than 30 years after the 1986 agreement, well beyond the 6-year period.

Reasoning

Although the appellant's equitable interest was recognised, the discretionary remedy of specific performance could not issue in respect of a 1986 agreement when sought in 2017. The appellant's remedy on that head was thus time-barred.

p. 5

Legal principles established

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  • A disposition inconsistent with a registered caution cannot be registered while the caution is in place except with the cautioner's consent or by court order.
  • A registered caution constitutes notice to a prospective purchaser, who must peruse the register (green card) as part of due diligence.
  • Time under section 7 of the Limitation of Actions Act in a claim founded on fraud runs from the registration giving rise to the fraudulent transaction, with a 3-year limitation period for fraud-based actions.
  • A purchaser in possession who has paid the purchase price acquires rights protected by the equitable doctrines of constructive trust and proprietary estoppel.

Court orders

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  1. 1.Appeal allowed with costs.
  2. 2.Declaration that all entries in the register of land parcel KISUMU/KADERO-GOT NYABONDO/3556 entered after registration of a caution are null and void and are hereby cancelled.
  3. 3.Permanent injunction restraining the 1st, 2nd and 3rd respondents, their agents, employees or anybody acting on their behalf from trespassing upon parcel No. KISUMU/KADERO-GOT NYABONDO/3556, transferring or in any way alienating the land.
  4. 4.Costs of the appeal and costs in the lower court awarded to the appellant.

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Law of Succession Act (Chapter 160)Section 93(1)
  • Law of Succession Act (Chapter 160)Section 82
  • Land Registration ActSection 71(1)(a)
  • Land Registration ActSection 72(2)
  • Land Registration ActSection 73
  • Land Control ActSection 6

Cases cited (1)

  • Lawrence Muguti Rutere vs Nelly Wachira & another, District Land Registrar Mberee (interested party)
    2019 eKLR
On appeal from
Principal Magistrate's Court, Kisumu
Kisumu CMC ELC No. 138 of 2018
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' courts (appeal from Kisumu CMC ELC No. 138 of 2018)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gordon Otieno Muna v Dennis Ongeso Ojany & 4 others [2021] KEELC 250 (KLR)", Case Analysis (2021). ELCA Case No. 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/250/eng@2021-12-17

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