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ELCDismissedNot stated in the judgment as provided (ELC suit, Bungoma, plaint dated July 2, 2018)· [2023] KEELC 888 (KLR)

Busuru & Busuru Investments Limited v Waraba & another (Environment & Land Case 34 of 2018) [2023] KEELC 888 (KLR)

Environment and Land Court
15 February 2023
4,382 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Busuru and Busuru Investments Ltd sued Pius Barasa Waraba and Joy Ambiche seeking cancellation of their title to land parcel No East Bukusu/South Kanduyi/3444, rectification of the register, and a permanent injunction, on the basis that the defendants had fraudulently and unlawfully transferred the property, registered in the plaintiff's name since June 2, 1995, into their names without the company's consent. The defendants, a couple, pleaded they were bona fide purchasers for value: they bought an adjoining parcel at a public auction in 2000, and in November 2003 purchased the suit property for Kshs 550,000 through Peter Dindi, acting for Busuru Richard Mark, paying Kshs 500,000 by bankers cheque drawn in Busuru's favour and Kshs 50,000 in cash, and were registered on November 12, 2003. The court framed two issues: whether the defendants fraudulently or illegally obtained registration, and whether Peter Dindi had actual or ostensible authority from Busuru Richard Mark. On the first, applying the principles in Vijay Morjaria and Kinyanjui Kamau, the court held fraud must be distinctly proved to a higher standard and cannot be inferred; the plaintiff produced no forged documents and failed. On the second, the court found from the circumstances - Busuru's admission that Dindi transacted land dealings for him in 2003, the paid cheque in his favour, Dindi's possession of his identity card, and the defendants' long possession - that Dindi had ostensible authority, binding the plaintiff. Absence of Land Control Board consent did not assist the plaintiff, the Land Control Act not being an instrument of unjust enrichment. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the defendants fraudulently or illegally acquired registration of the suit property

Holding

No; the plaintiff failed to prove fraud or forgery to the required standard, producing no forged transfer documents in evidence.

Reasoning

Fraud was pleaded but not distinctly proved. The plaintiff's director admitted in cross-examination he had not annexed any transfer documents or forged transfer form. Citing Vijay Morjaria and Kinyanjui Kamau, the court held allegations of fraud require strict proof on a standard higher than balance of probabilities and cannot be left to inference from facts. No such evidence was adduced.

p. 5
02

Whether Peter Dindi had actual or ostensible authority to sell the suit property on behalf of the plaintiff

Holding

Yes; Peter Dindi had apparent/ostensible authority, binding the plaintiff to the sale agreement of November 4, 2003.

Reasoning

Busuru Richard Mark admitted Dindi carried out land transactions for him in 2003; the bankers cheque for Kshs 500,000 drawn in his favour was paid; Dindi retained only the Kshs 50,000 commission; Dindi's possession of Busuru's ID card was unexplained; defendants have been in possession since 2003. These circumstances established ostensible authority under the Black's Law Dictionary definition adopted by the court.

p. 8
03

Whether absence of Land Control Board consent vitiates the transfer

Holding

No; the agreement did not state it was subject to Land Control Act consent, and even if it were, the Act is not an instrument of unjust enrichment.

Reasoning

The court could not presume the agreement was subject to the Land Control Act. Relying on Kiplagat Kotut v Rose Jebor Kipngok, the court held the Act comes to the aid of good faith parties, and allowing Busuru to keep the purchase price while cancelling the defendants' title would be inequitable; constructive trust and proprietary estoppel favour the defendants.

p. 8

Legal principles established

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  • Fraud must be specifically pleaded with particulars, distinctly proved to a standard higher than balance of probabilities, and cannot be inferred from facts.
  • A principal is bound by the acts of an agent acting with apparent or ostensible authority even where actual authority is denied.
  • The Land Control Act was not intended to be an instrument for unjust enrichment; the doctrine of constructive trust applies to prevent it.

Court orders

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  1. 1.The plaintiff's suit is dismissed.
  2. 2.The plaintiff shall meet the defendant's costs.

Authorities

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Legislation

  • Evidence ActSections 107, 108 and 109
  • Limitation of Actions ActCap 22 (raised as preliminary issue by defendants)
  • Land Control ActCap 302

Cases cited (5)

  • Vijay Morjaria v Nansingh Madhusing Darbar & Another
    [2000] eKLR
  • Kinyanjui Kamau v George Kamau
    [2015] eKLR
  • Ndolo v Ndolo
    (2008) 1 KLR (G&F) 742
  • Munyu Maina v Hiram Gathiha Maina
    CA Civil Appeal No 239 of 2009 [2013] eKLR
  • Kiplagat Kotut v Rose Jebor Kipngok
    [2019] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land parcel No East Bukusu/South Kanduyi/3444 (not expressly cited in the judgment)

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, "Busuru & Busuru Investments Limited v Waraba & another (Environment & Land Case 34 of 2018) [2023] KEELC 888 (KLR)", Case Analysis (2023). Not stated in the judgment as provided (ELC suit, Bungoma, plaint dated July 2, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/888/eng@2023-02-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.