M.O. Oseko & 3 others v David Awori & 4 others [2021] KEELC 4170 (KLR)
The bottom line
#The court ordered Nairobi land back to a buyer who had paid a deposit and moved in decades earlier, cancelling all later sales of the same plots.
What this practically means
#Executive summary
#Key legal issues
#Whether the oral agreement of sale satisfied section 3(3) of the Law of Contract Act
The 1992/1993 agreement was governed by the pre-2003 Law of Contract Act, whose proviso preserved part performance; the Osekos paid the deposit and took possession, making the oral agreement enforceable.
The 1990 amendments to section 3(3) did not commence until 1st June 2003, so the agreement of 1992/1993 was regulated by the pre-2003 provision, which contained a proviso preserving part performance. The Osekos paid Kshs. 380,000/= and took possession in 1993, performing the contract in part and remaining willing to perform; their possession was uncontroverted and acknowledged by correspondence. The agreement was therefore enforceable notwithstanding the absence of a signed written contract.
Whether the transfer by Lero Luno to Mhina and the subsequent transfers to Awori and Ouya were lawful
Both transfers were unlawful, being in breach of the subsisting agreement with the Osekos and of the doctrine of lis pendens, rendering all derivative titles null and void.
The suit properties had been sold to the Osekos who were in possession and had sued for specific performance when Lero Luno transferred them to Mhina. The doctrine of lis pendens applies regardless of notice. Mhina therefore acquired no valid title and could pass none to Awori and Ouya, who acquired during the pendency of ELCC No. 2905/1993 and while the Osekos were in possession; the innocent purchaser defence was unavailable.
Whether specific performance should be granted to the Osekos
Specific performance was granted subject to payment of the balance of Kshs. 470,000/=, but damages claims failed.
The Osekos performed their part and were willing to complete, while Raballa and Lero Luno breached the agreement; a case for specific performance was made out. However, the claim to deduct road construction costs from the purchase price was not proved, and special damages were neither pleaded with particulars nor strictly proved. General damages for trespass could not be awarded against Awori and Ouya as they never took possession, and the claim against Raballa abated on his death.
Legal principles established
#- The doctrine of lis pendens is of general application and does not depend on the purchaser's notice of the pending suit; a purchaser pendente lite is bound by the judgment in the suit
- A vendor who has entered into a binding and partly performed sale agreement cannot lawfully transfer the same property to another purchaser; such a transfer is unlawful
- A title founded on an unlawful transfer is invalid, and a transferee cannot pass better title than it holds (nemo dat)
Court orders
#- 1.Lero Luno Enterprises Limited shall transfer to Julie Oseko all those parcels of land known as L.R No. 12219/3 and L.R No. 12219/4 within 90 days from the date hereof.
- 2.Julie Oseko shall pay to Lero Luno Enterprises Limited the balance of the purchase price in the sum of Kshs. 470,000/= within 60 days from the date hereof prior to the transfer aforesaid.
- 3.Julie Oseko shall pay all statutory fees and charges on the transfer and any consent that may be required for the transfer to be effected.
- 4.It is declared that the transfer of L.R No. 12219/3 and L.R No. 12219/4 by Lero Luno Enterprises Limited to Judith Mhina was illegal, null and void and the same is cancelled.
- 5.It is declared that the transfer of L.R No. 12219/3 and L.R No. 12219/4 by Judith Mhina to David Awori and Maria Lilian Odongo Ouya was illegal, null and void and the same is cancelled.
- 6.Lero Luno Enterprises Limited and David Awori and Maria Lilian Odongo Ouya are restrained by themselves or through their employees or agents from damaging and/or interfering with the developments on and occupation of L.R No. 12219/3 and L.R No. 12219/4 by Julie Oseko in any way whatsoever.
- 7.ELCC No. 877 of 2003 is dismissed.
- 8.Julie Oseko shall have the costs of the consolidated suits to be paid by Lero Luno Enterprises Limited.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (consolidated first-instance suits)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M.O. Oseko & 3 others v David Awori & 4 others [2021] KEELC 4170 (KLR)", Case Analysis (2021). ELCC No. 870 of 2003 (lead file, consolidated with ELCC No. 2905 of 1993 and ELCC No. 877 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4170/eng@2021-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.