Raghvani v Kirigia; Momanyi t/a Momanyi & Co Advocates (Interested Party) (Environment & Land Case 115 of 2016) [2022] KEELC 2452 (KLR)
The bottom line
#A Nairobi land buyer lost his suit because he never verified who actually owned the property, and must pay damages for blocking the true owner's title.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was the vendor under the sale agreement dated 13th March 2015
The Respondent was not the vendor; the Applicant failed to identify him as the seller and the Respondent denied executing the agreement
The Applicant admitted he never saw the Respondent before and could not say for certain that the purported owner was the Respondent. The name in the agreement was misspelt (Karigia/Kirigi versus Kirigia) and the signature was denied. The court found the Applicant failed to identify the Respondent as the vendor.
Whether the Respondent received the Kshs.1.5 million deposit
The deposit was paid to M/S O.H Momanyi & Company Advocates, not to the Respondent
The deposit was paid through cheques received by Catherine Omoke at the law firm of O.H Momanyi & Company Advocates. The Respondent denied receiving any money and reported the matter to Langata Police Station. The court found the money was paid to the law firm and not the Respondent.
Which of the two titles produced is genuine
The Respondent's title (EX-D1) is the genuine title; the Applicant's title (EX-P1) did not emanate from the office of the Chief Land Registrar
PW2, a Principal Land Registrar, testified that the signature and entries in the Respondent's title tally with the records of the Chief Land Registrar, whereas the Applicant's title bore paper, stamp duty endorsement, receiving stamp and seal inconsistent with a 1991 registration and had no correspondence file.
Whether the caution registered by the Applicant against the Respondent's title should be removed
The caution was improperly and wrongfully lodged and ought to be removed, with compensation payable to the Respondent under Section 75 of the Land Registration Act, 2012
The Respondent never sold the suit property and has been unable to deal with it since 2015 due to the caveat. Under Section 75 of the Land Registration Act, 2012, a person who wrongfully maintains a caution is liable to pay compensation. The court awarded Kshs.200,000 as reasonable compensation.
Liability of the Interested Party advocate for the fraud
Advocate Hesbon Momanyi was at the centre of the fraud and an accomplice to it, but no relief was granted against him in this suit; the Applicant was directed to pursue him separately
The Advocate received the Kshs.1.5 million deposit, authored the letter demanding an additional Kshs.2 million contrary to the agreement, and refused to honour court summons. The court found he and the imposter knew the transaction was fraudulent and that the Applicant should seek to recover the deposit from him.
Legal principles established
#- A person who lodges or maintains a caution wrongfully and without reasonable cause is liable in damages to any person who sustains damage thereby
- A party who alleges a contract must prove the identity of the counterparty and payment of consideration to that counterparty to obtain specific performance
Court orders
#- 1.The Applicant's suit is dismissed with costs to the Respondent
- 2.The Chief Land Registrar is ordered to remove the caution registered against Title LR No 209/10690 (IR 53391) forthwith
- 3.The Respondent is awarded Kshs.200,000/- being compensation for the wrongful caution
- Jurisdiction invoked
- Order 37 Rule 3 of the Civil Procedure Rules 2010, Section 3A of the Civil Procedure Act and all other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raghvani v Kirigia; Momanyi t/a Momanyi & Co Advocates (Interested Party) (Environment & Land Case 115 of 2016) [2022] KEELC 2452 (KLR)", Case Analysis (2022). Originating Summons dated 11th February 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2452/eng@2022-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.