Margaret Wangui Gatero v Felix Mureithi; Paul Mutua Makenzi & 2 others (Third parties) [2022] KEELC 284 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered a land buyer who built on the wrong plot to vacate, but the sellers who misled him must pay his costs and damages.
What this practically means
#Executive summary
#Key legal issues
#Capacity of the plaintiff to sue for the estate
The objection to capacity was moot; the limited grant of letters of administration ad litem confirmed Margaret Wangui Gatero as legal representative.
The court referred to the definition of 'legal representative' in Section 2 of the Civil Procedure Act and to the limited grant ad litem issued in Succession Cause No. 910 of 2011. It held the standing of the suit could not be defeated either by the capacity objection or the claim that the suit abated after the death of the initial plaintiff Grace Wambui Gatero.
Ownership of the suit property
The Plaintiff proved the property was registered in the name of the deceased and she is the rightful owner.
PW1 produced a certificate of title issued on 24th May 1993 confirming registration in the name of Duncan Wanjau Gatero. The position was undisputed by the Defendant and third parties. The court applied Sections 24(a) and 26(1) of the Land Registration Act on vesting of absolute ownership and indefeasibility of title.
Whether the Defendant committed trespass
The Defendant occupied under a genuine mistaken belief induced by the 1st and 2nd third parties; this was not a deliberate trespass.
The court found the confusion was caused by the 1st and 2nd third parties who sold and physically pointed out the wrong property to the Defendant. Relying on Miriam Njoki Chege and Colwill v Reeves, it held that mistaken occupation is not necessarily trespass, and that the Defendant's occupation was not a deliberate act of trespass, though it was not involuntary in the sense of being forced.
Reliefs: eviction and injunction
Eviction and permanent injunction were merited as the Plaintiff is the legitimate proprietor and the Defendant has no right to remain.
Having found the Plaintiff to be the registered owner, the court held she was entitled to enjoy the rights and privileges appurtenant to the title. The Defendant, notwithstanding his mistake and innocent purchaser status, had no right to continue in occupation. Both prayers met the threshold for grant.
Third party indemnity
The 1st and 2nd third parties, as authors of the mistake, are liable to indemnify the Defendant; Order 1 rule 19 CPR applies to the non-participating 3rd third party.
The third party proceedings were instituted under Order 1 rule 15 CPR. The 1st and 2nd third parties admitted selling the property and were found to be authors of the mistake. Since the Plaintiff succeeded against the Defendant, the court held the third parties equally liable to indemnify him, and invoked Order 1 rule 19 against the 3rd third party who never entered appearance.
Legal principles established
#- Registration of a person as proprietor of land vests absolute ownership, and a certificate of title is prima facie evidence of absolute and indefeasible ownership subject only to fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme.
- An involuntary entry or mistaken occupation of property does not necessarily amount to trespass.
- Mesne profits require proof of wrongful possession and a specific pleaded and proved amount; damages are claimable only for the period of the defendant's wrongful possession.
Court orders
#- 1.An eviction order issued against the Defendant, his servants or agents, to vacate Plot No. 536 (L.R No. 14870/404) within ninety (90) days, failing which the Plaintiff may evict him
- 2.A permanent injunction restraining the Defendant, his servants, agents and/or family members from occupying, using, dealing with or interfering with Plot No. 536 (L.R No. 14870/404)
- 3.The Plaintiff awarded costs of the suit, to be met by the Defendant
- 4.The 1st, 2nd and 3rd Third Parties to wholly indemnify the Defendant in respect of any damages and costs incurred
- 5.The 1st, 2nd and 3rd Third Parties to pay the costs of the third party proceedings to the Defendant
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to ownership, occupation and title to land (Plot No. 536, LR No. 14870/404)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Wangui Gatero v Felix Mureithi; Paul Mutua Makenzi & 2 others (Third parties) [2022] KEELC 284 (KLR)", Case Analysis (2022). ELC Case No. 715 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/284/eng@2022-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.