Mwandiku & another v Mubia Holdings Limited & 2 others
The bottom line
#The Mombasa land court restored ownership of a Kikambala plot to the original 1975 company, voided rival titles, and rejected both adverse possession claims.
What this practically means
#Executive summary
#Key legal issues
#Who holds the indefeasible title to the suit land
Mubia Holdings Limited (Registered 1975) is the lawful registered proprietor per Entry No. 5 of the original certificate of title; the 2014 company and all provisional titles were irregular
The court traced the root of title through Entries 1 to 5 of the original certificate, finding the land transferred to Mubia Holdings Limited (1975) on 1st March 1984. The provisional certificates held by Behrmann and Lenangetai rested on the NLC decision and the ELC No. 57 of 2016 judgment, both of which had been set aside, rendering the titles null and void ab initio. The court invoked Sections 23 and 24 of the repealed RTA and Sections 79 and 80 of the LRA to order revocation.
Whether a valid sale agreement existed between Behrmann and Wairagu/Mubia Holdings (1975)
Yes - the memorandum of 23rd January 1994 was a valid, enforceable agreement for a portion (about 1/4 acre) of the suit land, though the exact parcel was never specified
The agreement was duly executed with consideration of DM 20,000 and witnessed. Although the exact land was imprecise ('Plot 5 the two holes area'), Behrmann's long occupation and development without interference evidenced an implied contract. The vendor breached it by failing to transfer or refund. The court held Behrmann entitled either to the portion she bought or a refund with interest at market rate.
Whether Mwandiku and Behrmann acquired title by adverse possession
No - both claims failed; Behrmann entered with the owner's permission and Mwandiku never proved the strictures of adverse possession
Behrmann's entry was founded on the 1994 agreement, i.e. permissive, and her occupation was interrupted by numerous suits, complaints and title cancellations. Mwandiku claimed to be financier and purchaser simultaneously, was a minor in 1994, and was never a party to the 1994 agreement. The court found neither fulfilled the nec vi, nec clam, nec precario requirements nor the 12-year uninterrupted occupation.
Whether there was a valid contract between Mwandiku and Behrmann
The 2013-2014 agreements existed but the transaction fell through; Behrmann had no transferable title and Mwandiku never completed payment of the Kshs 23,000,000 price
Behrmann held no proprietary rights at the time of the 2013 agreements since the land had not been transferred to her. Mwandiku paid only Kshs 2,000,000 of the agreed Kshs 23,000,000. The 3rd Defendant was a stranger to those agreements. The remedy was refund of the monies paid with interest.
Legal principles established
#- A registered proprietor whose root of title is under challenge must prove the legality of how the title was acquired, not merely dangle the title instrument
- Adverse possession requires non-permissive, open, continuous and uninterrupted possession for 12 years, and the claimant must follow the Order 37 procedure with a certified extract of title
- A repealed statute's provisions continue to govern rights accrued under it unless a contrary intention appears
Court orders
#- 1.Judgment entered dismissing both suits ELC No. 251 of 2013 (save for the 3rd Defendant's Counter Claim) and ELC No. 57 of 2016 for lack of merit
- 2.Judgment entered in favour of the 3rd Defendant (Mubia Holdings Limited (Registered in 1975)) on its Counter Claim filed in ELC No. 251 of 2013 on 12th March 2019
- 3.Registrar of Titles Mombasa directed to remove any registered caveat, restriction and other prohibitory order on Entry No. 5 against Plot No. 533 Section III Mainland North CR No. 14272
- 4.Declaration that all Provisional Certificates of title issued over Plot 533 Section III Mainland North CR No. 14272 in the names of Ms Behrmann, Caroline Mwelu Mwandiku and Joseph Likoot Lenangetai are illegal, wrongful, unlawfully, null and void and to be cancelled/revoked under Section 26 of the Registered Titles Act Cap 281 (Repealed) and Sections 79(1)&(2) and 80(1)&(2) of the Land Registration Act No. 3 of 2012
- 5.Declaration that Plot 533 Section III Mainland North CR No. 14272 be registered in the names of Mubia Holdings Limited (Registered in 1975) and the company be issued with/entry entered into its title deed as per Entry No. 5 with immediate effect
- 6.Board of Directors of Mubia Holdings Limited to settle the income tax owed to KRA and within 30 days pass a resolution under Section 158(1) of the Companies Act to either hive off 1/4 acre of the suit land and transfer it to Monika Herta Elfriede Behrmann per the 23rd January 1994 sale agreement, or in default refund her DM 20,000 with 14% interest per annum from 1994 plus the value of developments as assessed by a qualified Land Valuer
- 7.Direction that Caroline Mwelu Mwandiku consider exploring recovery of Kshs 2,000,000 with interest at the commercial rate from Monika Herta Elfriede Behrmann for breach of the sale agreement dated 21st August 2013
- 8.If the parties opt for refund of monies instead of hiving off and transfer of land, the plaintiffs to vacate the suit property within 180 days under Section 152E of the Land Act No. 6 of 2012, with liberty to peacefully remove their properties at their own costs or the 3rd Defendant to remove them at the plaintiffs' costs
- 9.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya 2010 and Section 13 of the Environment and Land Court Act; Sections 7, 13 and 38 of the Limitation of Actions Act Cap 22
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwandiku & another v Mubia Holdings Limited & 2 others", Case Analysis (2023). Environment & Land Case 251 of 2013 & 57 of 2016 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16998/eng@2023-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.