Konga v Ringine & 2 others (Environment & Land Case 12 of 2016) [2023] KEELC 771 (KLR)
The bottom line
#A Kenyan court declared a land buyer's title defeated because a family had openly occupied and farmed the land for decades.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the plaintiff has proved the ingredients of adverse possession.
- 2.If the sale and transfer of the suit property by the 1st and 2nd defendants to the 3rd defendant offended the doctrine of Lis pendens.
- 3.If the sale and transfer of the suitland offended the Land Control Act, the Law of Succession Act and or was subject to any overriding right held by the plaintiff.
- 4.If the 3rd defendant pleaded and has proved that he was an innocent purchaser for value without notice.
- 5.If the plaintiff and the 3rd defendant are entitled to their respective reliefs as pleaded.
Key legal issues
#Whether the plaintiff proved adverse possession
Yes. The plaintiff's late father bought the land in 1969, cleared the price in 1973 and took vacant possession; the plaintiff entered in 1995, erected permanent developments and buried his mother on the land openly, without force or permission, and the defendants never effectively re-entered or sued for eviction.
The court applied the Limitation of Actions Act test (12 years, nec vi nec clam nec precario) and the aborted-sale rule in Public Trustee v Wanduru Ndegwa. The defendants admitted moving away in 1973 and admitted the plaintiff's house, burial site and occupation. No notice to vacate or eviction suit was tendered. Possession was continuous, open and with animus possidendi, so title of the registered proprietor stood extinguished.
Whether the sale and transfer to the 3rd defendant offended lis pendens
Yes. The transfer and registration occurred in April 2018 while this suit, lodged in 2016, was pending and while the plaintiff's caution and probate objections were on record.
Citing Dhanjal Investments and Mawji v USIU, the court held property in litigation cannot be transferred without court authority. The law firm preparing the sale agreement was the same firm representing the defendants in the suit, and the 3rd defendant, a local man, must have known of the plaintiff's occupation and claim.
Whether the sale by the 1st and 2nd defendants was valid under the Law of Succession Act
No. The sale agreement of December 4, 2014 was executed before confirmation of grant on February 8, 2018, so the administrators had no capacity and the agreement was null and void.
Sections 54 and 82 of the Law of Succession Act prohibit dealings with estate property before confirmation of grant, following Morris Mwiti Mburugu v Denis Kimathi Mburugu. A transaction concluded without a confirmed grant cannot be protected by the court.
Whether the 3rd defendant was a bonafide purchaser for value without notice
No. He failed to prove due diligence; he did not produce transfer documents or land control board consents, and the registered caution, probate objections and the plaintiff's visible occupation gave him notice.
Following MWK v SKK, Richard Oduol Opole, Lawrence Mukiri and Katende v Haridar, the court held that a tainted or irregular registration process defeats bonafide purchaser status. The 3rd defendant, from the same locality and aware of the plaintiff's occupation and the pending dispute, took subject to the plaintiff's overriding interests.
Legal principles established
#- A sale of immovable property by administrators before confirmation of a grant is null and void under Sections 54 and 82 of the Law of Succession Act.
- Removal of a caution without notification to the cautioner as required by Section 83(3) of the Land Registration Act renders the removal irregular.
- A transfer of land during the pendency of a suit over it is subject to lis pendens and takes subject to the occupier's overriding interests.
- A purchaser who buys land knowing of a pending dispute and the occupier's possession cannot be a bonafide purchaser for value without notice.
- Time under adverse possession begins to run when the purchaser takes vacant possession upon clearance of the purchase price, discontinuing the registered owner's possession.
Court orders
#- 1.The suit is allowed with costs to the plaintiff.
- 2.The 3rd defendant's counterclaim is dismissed with costs.
- 3.The 3rd defendant shall execute the transfer forms in favour of the plaintiff within 2 months from the date of the judgment, in default the Deputy Registrar of the court to execute the same.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes); not expressly stated in judgment
Relief refused
#3rd defendant's counterclaim for a declaration that he was the absolute owner of LR No Ntima/Ntakira/6430 to the exclusion of the plaintiff
He failed to prove he was a bonafide purchaser for value without notice; the sale agreement was null and void for want of a confirmed grant, the transfer offended lis pendens, and the land was subject to the plaintiff's overriding interest of adverse possession.
Costs
The suit is allowed with costs to the plaintiff; the counterclaim is dismissed with costs to the plaintiff.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is the suit is allowed with costs. The counterclaim is dismissed with costs. The 3rd defendant shall execute the transfer forms in favour of the plaintifi within 2 months from the date hereof in default the Deputy Registrar of the court to execute the same.
In absence of such a notice, my finding is that the caution was irregularly lifted without notification to the cautioner, the plaintifi.
Therefore, the said sale agreement was null and void in line with Sections 54 and 82 of the Law of Succession Act.
my finding is that the sale, transfer and registration of the suit land in the name of the 3rd defendant was subject to the occupation rights of the plaintifi.
In this suit, the plaintifi has proved all the hallmarks of the adverse possession.
where there was a tainted and an irregular procedure leading to the registration of title, one could not be a bonafide purchaser for value without notice.
Issues in the judgment
#Internal inconsistency on the date the sale agreement is described as having been executed: the plaintiff is elsewhere stated to have said the 3rd defendant bought the land on December 16, 2018 while the sale agreement produced is dated December 4, 2014
The year of the plaintiff's father's death is given inconsistently (2001 in one passage, 2007 in another)
The date of DW1's witness statement is given as July 1, 2009 while the defence list of witness statements is dated July 1, 2019
The date of the 3rd defendant's defence and counterclaim is given as both December 16, 2020 and December 14, 2020
The date of pendency of the suit is inconsistently stated as April 25, 2016 in the lis pendens discussion though the suit was described as lodged in 2016 and the green card entries were made in April 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Konga v Ringine & 2 others (Environment & Land Case 12 of 2016) [2023] KEELC 771 (KLR)", Case Analysis (2023). Meru ELC (originating summons dated October 30, 2020) - not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/771/eng@2023-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.