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ELCDismissedOriginating Summons dated 11th February 2016· [2022] KEELC 2452 (KLR)

Raghvani v Kirigia; Momanyi t/a Momanyi & Co Advocates (Interested Party) (Environment & Land Case 115 of 2016) [2022] KEELC 2452 (KLR)

Environment and Land Court
14 July 2022
4,693 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicant brought an originating summons under Order 37 Rule 3 of the Civil Procedure Rules seeking specific performance of a sale agreement dated 13th March 2015 over LR No.209/10690 (IR 53391), Nairobi, or in the alternative an order that the Registrar of Titles execute the transfer. He alleged he paid a 10% deposit of Kshs.1.5 million to the vendor's advocates, M/S O.H Momanyi & Company Advocates, and that the vendor refused to execute the transfer and demanded a further Kshs.2 million. The Respondent denied selling the property, denied knowing the advocates, alleged the sale agreement was forged, reported the matter to Langata Police Station, and sought removal of the caveat the Applicant had lodged against his title. The matter proceeded by viva voce evidence. The Applicant could not confirm that the Respondent was the person he dealt with; the Principal Land Registrar testified that the Respondent's title was genuine while the Applicant's title did not emanate from the Chief Land Registrar's office. The court held the Respondent was not the vendor, the deposit was paid to the advocate's firm and not the Respondent, and the Applicant was a victim of fraudsters whose lawyers failed to exercise due diligence. The court found the advocate Hesbon Momanyi, joined as an interested party but who refused to attend court, was an accomplice to fraud. The suit was dismissed with costs to the Respondent; the Chief Land Registrar was ordered to remove the caution forthwith and the Respondent was awarded Kshs.200,000 compensation for the wrongful caution under Section 75 of the Land Registration Act, 2012.

Key legal issues

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01

Whether the Respondent was the vendor under the sale agreement dated 13th March 2015

Holding

The Respondent was not the vendor; the Applicant failed to identify him as the seller and the Respondent denied executing the agreement

Reasoning

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.

p. 8
02

Whether the Respondent received the Kshs.1.5 million deposit

Holding

The deposit was paid to M/S O.H Momanyi & Company Advocates, not to the Respondent

Reasoning

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.

p. 8
03

Which of the two titles produced is genuine

Holding

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

Reasoning

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.

p. 8
04

Whether the caution registered by the Applicant against the Respondent's title should be removed

Holding

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

Reasoning

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.

p. 9
05

Liability of the Interested Party advocate for the fraud

Holding

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

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Applicant's suit is dismissed with costs to the Respondent
  2. 2.The Chief Land Registrar is ordered to remove the caution registered against Title LR No 209/10690 (IR 53391) forthwith
  3. 3.The Respondent is awarded Kshs.200,000/- being compensation for the wrongful caution

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 37 Rule 3
  • Civil Procedure ActSection 3A
  • Land Registration Act, 2012Section 75
  • Constitution of Kenya, 2010Article 47

Cases cited (5)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] e KLR
  • Jonathan Namulala Nyongesa v Muli Business Schoolers Investors Ltd & 3 others
    [2017] e KLR
  • Reliable Electrical Engeneers Ltd v Mantrc Kenya Limited
    [2006] eKLR
  • Gallie v Lee & Another
    [1969] 1 ALL ER 1062
  • Josephine Mwikali Kikenye v Omar Abdalla Kombo & Another
    [2018] e KLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.