Mohammed Feisal Mohamud & 2 others v Richard Guya Membo & 5 others [2022] KEELC 830 (KLR)
The bottom line
#The Kisumu Environment and Land Court dismissed tenants' bid to claim land ownership, warning that fraud allegations must be specifically proved, not merely inferred.
What this practically means
#Executive summary
#Key legal issues
#Validity of the 11/3/2016 sale agreement between the 1st Defendant and the 4th-6th Defendants
The agreement was legal and binding, complying with Section 3(3) of the Law of Contract Act
The sale agreement was in writing, signed by all parties, and the signatures were attested by an advocate of the High Court of Kenya, satisfying the statutory requirements for contracts for the disposition of an interest in land. The plaintiffs, being strangers to that agreement, cannot complain of any breach of it.
Whether the plaintiffs' 29/3/2016 agreement and the revocation deed conferred title on the plaintiffs
Both were nullities; the vendors had ceased to be proprietors and the 1st Defendant was not party to the revocation
By 29/3/2016 the property had already been transferred and registered in favour of the 3rd Defendant, so the 4th-6th Defendants had no capacity to revoke or re-sell. A revocation deed binds only the parties to it and cannot affect third parties such as the 1st Defendant, who was not involved.
Whether the registration of the 3rd Defendant rather than the 1st Defendant was fraudulent
Not fraudulent; the registration followed the instructions of the 1st Defendant as beneficiary of the transfer, and fraud was not distinctly proved
The 1st Defendant, as transferee and beneficiary, instructed the Land Registrar to register the property in the name of the 3rd Defendant. Although the Land Registrar acted against known practice, the plaintiffs - mere tenants and strangers to the 11/3/2016 agreement - lack standing to complain, and the fraud standard of proof was not met.
Counter-claim for mesne profits and vacant possession
Awarded; mesne profits of Kshs. 680,000 per month from April 2016 and vacant possession within 60 days
The plaintiffs have been in occupation earning income from the property since the defendants' title was registered. The court adopted the plaintiffs' own admitted income figure of Kshs. 680,000 per month rather than the valuation report figure of Kshs. 720,000, computing mesne profits from April 2016 until payment.
Legal principles established
#- A revocation of a sale agreement by vendors who have ceased to be proprietors of the property, and to which the purchaser was not a party, does not bind the purchaser or third parties
- Fraud must be specifically pleaded and distinctly proved to a standard higher than a balance of probabilities; it cannot be inferred from the facts
- A court will decline to invalidate a registration where doing so would merely act in vain, the transaction itself having been for valuable consideration and properly documented
Court orders
#- 1.The plaintiffs' suit is dismissed with costs
- 2.Mesne profits of Kshs. 680,000 per month awarded to the 1st and 3rd Defendants jointly from April 2016 until payment
- 3.Order for vacant possession of land parcels Block 7/275 and 276 granted to the 1st and 3rd Defendants
- 4.Plaintiffs to vacate within 60 days
- 5.Costs of the suit and counter-claim granted to the defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land parcels KISUMU/MUNICIPALITY/BLOCK 7/275 and 276
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohammed Feisal Mohamud & 2 others v Richard Guya Membo & 5 others [2022] KEELC 830 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/830/eng@2022-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.