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ELCAllowedBungoma Environment and Land Court Case (plaint dated 10th February 2020)· [2021] KEELC 988 (KLR)

Wensley Barasa v Immaculate Awino Abongo & another [2021] KEELC 988 (KLR)

Environment and Land Court
4 November 2021
BOBoaz N. Olao
5,090 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land sale done in breach of stay orders, ruling the buyer failed to prove he paid for the land.

What this practically means

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Executive summary

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The plaintiff sued the defendants seeking a declaration that the 2nd defendant holds title to land parcel EAST BUKUSU/SOUTH KANDUYI/5778 in trust for him, cancellation of that title, eviction, costs and interest. The dispute arose from the plaintiff's purchase of the land in 1987/1988, the 1st defendant's 2010 purchase and her successful eviction suit in Bungoma High Court Civil Case No 93 of 2011, whose judgment the Court of Appeal set aside in Civil Appeal No 115 of 2015 after recognising the plaintiff's overriding interest. While the appeal was pending and stay orders in Civil Application No 68 of 2015 were in force, the 1st defendant sold and transferred the land to the 2nd defendant, who built on it claiming to be an innocent purchaser for value. In a ruling of 26th June 2020 the Court struck out the suit against the 1st defendant on res judicata grounds, leaving the 2nd defendant. Olao J held that upon the Court of Appeal's finding of an overriding interest, the 1st defendant became a constructive trustee and could pass no title; that the transfer in the face of subsisting stay orders was contempt of court rendering the sale illegal, null and void; and that the 2nd defendant failed to plead and prove the bona fide purchaser defence, producing no evidence of payment of the Kshs 2,550,000/= consideration. The Court also declined to strike out the plaint over the verifying affidavit, treating the infraction as minor. Judgment was entered for the plaintiff: a declaration of trust, transfer of the land within 30 days (with the Deputy Registrar to execute documents in default), rectification of the register, vacation of the land within three months, and costs against the 2nd defendant.

Key legal issues

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01

Whether the 2nd defendant holds the title in trust for the plaintiff

Holding

Yes - a constructive trust arose in favour of the plaintiff once the Court of Appeal recognised his overriding interest; the 1st defendant could pass no title to the 2nd defendant.

Reasoning

The Court of Appeal in Civil Appeal No 115 of 2015 held the plaintiff's occupation conferred an overriding interest under Section 30 of the repealed Registered Land Act, now replicated in Section 28 of the Land Registration Act which expressly includes trusts. From the date of that decision the 1st defendant became a constructive trustee with no personal interest and could not pass title. The plaintiff's trust claim therefore succeeded.

p. 5
02

Whether the sale to the 2nd defendant was valid notwithstanding the stay orders

Holding

No - the transfer effected while stay orders were in force was in contempt of court and the sale agreement was illegal, null and void; no interest passed.

Reasoning

The Court of Appeal's stay orders in Civil Application No 68 of 2015 prohibited precipitate action over the suit land pending appeal. The 1st defendant nonetheless transferred the land in September/December 2015 while the order was alive. Such transfer was contemptuous, and the 2nd defendant could not benefit since the seller knew of the order. No interest passed to the 2nd defendant.

p. 5
03

Whether the 2nd defendant was an innocent purchaser for value without notice

Holding

No - he failed to specifically plead the defence and adduced no evidence of payment of the Kshs 2,550,000/= consideration.

Reasoning

The bona fide purchaser defence is a complete defence against a prior equitable owner and must be strictly proved. Though the 2nd defendant claimed to have paid the purchase price into the 1st defendant's account, he produced no bank deposit slip. His failure to prove valuable consideration showed the sale was a scheme to defeat the Court of Appeal judgment; the doctrine does not protect him.

04

Whether the suit should be struck out for an unsigned verifying affidavit

Holding

No - the verifying affidavit was signed, dated and commissioned, and the infraction was minor with no prejudice caused.

Reasoning

Distinguishing Gideon Sitelu Konchellah, where the affidavit was wholly unsigned, the Court found the signature on the verifying affidavit differed from the plaintiff's earlier signature but the affidavit was signed, dated and commissioned, the suit was filed on the plaintiff's instructions, and previous suits were disclosed. Striking out would be a draconian step reserved for the clearest of cases.

p. 4

Legal principles established

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  • Registration of land in a party's name does not relieve him of any duty or obligation owed to another as a trustee.
  • From the date the Court of Appeal recognised the plaintiff's overriding interest, the seller became a constructive trustee and could pass no title to a third party.
  • Transfer of land in the face of a subsisting stay order is contempt of court and renders the sale illegal, null and void.
  • A party pleading bona fide purchaser status bears the burden of proving it, including payment of valuable consideration.
  • A plaint should only be struck out for a minor procedural infraction in the clearest of cases.

Court orders

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  1. 1.A declaration that the 2nd defendant holds the title to land parcel NO EAST BUKUSU/SOUTH KANDUYI/5778 in trust for the plaintiff
  2. 2.The trust is determined and the 2nd defendant shall within 30 days of the Judgment execute all relevant documents to facilitate transfer of the parcel to the plaintiff
  3. 3.In default, the Deputy Registrar shall execute all such documents on behalf of the 2nd defendant
  4. 4.The Land Registrar Bungoma shall rectify the register to reflect the plaintiff as registered proprietor
  5. 5.The 2nd defendant shall vacate the parcel and remove all structures within three months, failing which he shall be evicted
  6. 6.The 2nd defendant shall meet the plaintiff's costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 4 Rule 1(2)
  • Land Registration ActSection 25(1) and (2)
  • Land Registration Act 2012Section 28
  • Registered Land Act (repealed)Section 30
  • Land Registration ActSection 26(1)
  • Evidence ActSection 107(1)
  • Evidence ActSections 109 and 112
  • Constitution of KenyaArticle 40

Cases cited (9)

  • GIDEON SITELU KONCHELLAH .V. JULIUS SUNKULI
    2018 eKLR
  • PIUS NJOGU KATHURI .V. JOSEPH KIRAGU MUTHURA
    2018 eKLR
  • D. T. DOBIE & COMPANY (KENYA) LTD .V. JOSEPH MBARIA MUCHINA & ANOTHER
    1980 eKLR
  • KANYI .V. MUTHIORA
    1984 KLR 712
  • KISUMU COURT OF APPEAL CASE No 115 of 2015 (Wensley Barasa v Immaculate Awino Abongo)
  • TWALIB HATAYAN & ANOTHER .V. SAID SAGGAH AHMED AL HEIDY & OTHERS
    2015 eKLR
  • JOSE ESTATE LTD .V. MUTHUMU FARM LIMITED & OTHERS
    2019 eKLR
  • MOSES PARANTAI & PERIS WANJIKU MUKURU .V. STEPHEN NJOROGE MACHARIA
    2020 eKLR
  • KATENDE .V. HARIDAR & COMPANY LTD
    [2008] 2 E.A 173
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (original jurisdiction; prior preliminary objection on jurisdiction dismissed by this Court)

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, "Wensley Barasa v Immaculate Awino Abongo & another [2021] KEELC 988 (KLR)", Case Analysis (2021). Bungoma Environment and Land Court Case (plaint dated 10th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/988/eng@2021-11-04

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