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ELCPartially AllowedNot stated in the judgment (instituted by plaint dated 17 September 2009)· [2021] KEELC 1461 (KLR)

Davis Mwashao Jome v Damaris Karanja & another [2021] KEELC 1461 (KLR)

Environment and Land Court of Kenya
13 October 2021
MSMunyao Sila
9,211 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff sued for trespass and cancellation of a rival title over Plot No. MN/III/2654, Mtwapa, Kilifi, claiming to be registered proprietor under title CR 34611 anchored on Deed Plan No. 180529. The 1st defendant counterclaimed, asserting ownership under title CR 45719 anchored on Deed Plan No. 242710, purchased from one Oscar Muli Kithuka. Both titles traced to the 1994 subdivision of mother Plot No. 34, which identified the suit land by Deed Plan No. 180529. The court found the 1st defendant's title could not stand: the transfer to her was effected on 17 June 2010 while the suit was pending and after an injunction had issued, breaching the lis pendens doctrine under Section 52 of the Indian Transfer of Property Act. On the substance, the Director of Surveys' evidence established that Deed Plan No. 242710 relates to a property in Nairobi, not the suit land; no authenticated survey plan of any alleged 2005 amendment survey was produced; and there was no record of surrender of Deed Plan No. 180529. The Land Control Board consent was of dubious authenticity, having purportedly issued before the application. The 1st defendant also failed to produce the sale agreement or proof of payment and was found not to be an innocent purchaser for value. The court declared the 1st defendant's title null and void ab initio, cancelled it, ordered it retained by the court, awarded the plaintiff general damages of Kshs. 1,000,000/= with interest for trespass, and ordered the 1st defendant to bear the costs of the suit and counterclaim.

Key legal issues

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01

Which of the two competing titles over the suit land is genuine

Holding

The plaintiff's title anchored on Deed Plan No. 180529 is genuine; the 1st defendant's title was procured fraudulently or issued by mistake and was cancelled.

Reasoning

Both titles trace to the 1994 subdivision of mother Plot No. 34, which identified the suit land by Deed Plan No. 180529. The Director of Surveys' evidence showed Deed Plan No. 242710 in the 1st defendant's title relates to LR No. 26312 in Nairobi, not the suit land in Mtwapa. No authenticated survey plan of any 2005 amendment survey was produced, and there was no record of surrender of Deed Plan No. 180529. The plaintiff's title was also first in time (2001).

p. 8
02

Violation of the doctrine of lis pendens

Holding

The 1st defendant processed and obtained title while the suit was pending and after an injunction had issued, breaching Section 52 of the ITPA; the title cannot stand on that basis alone.

Reasoning

An injunction had issued on 5 March 2010 while the registered proprietor was Oscar Muli Kithuka. The 1st defendant nonetheless had the land transferred to herself on 17 June 2010 without joining Oscar Muli or issuing a third party notice. Section 52 of the ITPA, supported by Rose Wakanyi Karanja and Mawji v US International University, prohibits dealing with disputed property during contentious litigation.

03

Authenticity of the Land Control Board consent

Holding

The LCB consent was of dubious authenticity because it purportedly issued on 3 September 2009, a day before the application dated 4 September 2009.

Reasoning

The 1st defendant produced an application for LCB consent dated 4 September 2009 alongside a consent dated 3 September 2009. She could not explain how consent issued before the application. The court found this fatal to the legitimacy of the transfer process to her.

p. 8
04

Liability and quantum for trespass

Holding

The 1st defendant trespassed on the plaintiff's land, was not an innocent purchaser for value, and was liable for general damages of Kshs. 1,000,000/=.

Reasoning

The 1st defendant entered the land before she had title, erected a wall and structures without producing building plans, failed to produce the sale agreement or proof of payment, and did not call Oscar Muli. The court exercised its discretion on quantum considering her conduct, the length of the plaintiff's exclusion, and the size and location of the land.

p. 8

Legal principles established

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  • Once litigation is pending over immovable property, parties are barred from transferring or otherwise dealing with it under the lis pendens doctrine, and a title obtained in breach cannot stand.
  • Where two titles exist over the same land, the court must determine which is genuine by going to the root of both titles.
  • Under Section 32 of the Survey Act, land is not deemed surveyed or resurveyed until the plan has been authenticated by the Director or an authorised Government Surveyor.
  • A party alleging a resurvey bears the burden of producing the duly authenticated survey plan for it.
  • A second title for the same land cannot lawfully be issued where one already exists.
  • General damages for trespass are quantified at the discretion of the court.

Court orders

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  1. 1.Declaration that the 1st defendant's title is null and void ab initio
  2. 2.Cancellation of the 1st defendant's title CR No. 45719
  3. 3.Order that the Registrar of Titles not undertake any further registration of dispositions based on the 1st defendant's title
  4. 4.Order that the 1st defendant's title be retained by the Court and never released to any person
  5. 5.General damages of Kshs. 1,000,000/= in favour of the plaintiff against the 1st defendant, with interest at court rates from the date of judgment
  6. 6.1st defendant to bear the costs of the suit and the counterclaim

Authorities

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Legislation

  • Registration of Titles Act, Cap 281Section 52 (pleaded by plaintiff)
  • Indian Transfer of Property Act, 1882Section 52
  • Survey Act, 2010Section 32
  • Constitution of Kenya, 2010Not specified (creation of the ELC)

Cases cited (7)

  • Duncan Ndegwa vs Kenya Pipeline Corporation & Another
    (2013) eKLR
  • Hubert L. Martin & 2 Others vs Margaret J. Kamar & 5 Others
    (2016) eKLR
  • Mourine Mukonyo vs Embu Water and Sanitation Company
    (2020) eKLR
  • Rose Wakanyi Karanja & 3 Others (Suing as the legal representatives of the Estates of the late Walter Karanja Muigai) V. Geoffrey Chege Kirundi
    Civil Appeal No. 172 of 2010
  • Mawji v US International University & Another
    [1976] KLR Page 199
  • Bellamy v Sabince
    IDeG & J 566
  • Duncan Nderitu Ndegwa vs Kenya Pipeline Company Limited & Another
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the 2010 Constitution (matter transferred from the High Court upon the court's creation)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Davis Mwashao Jome v Damaris Karanja & another [2021] KEELC 1461 (KLR)", Case Analysis (2021). Not stated in the judgment (instituted by plaint dated 17 September 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1461/eng@2021-10-13

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