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ELCDismissedEnvironment and Land Appeal 13 of 2021· [2023] KEELC 18541 (KLR)

Magugu & another v Thendu & 2 others

Environment and Land Court
29 June 2023
AOA Ombwayo
3,812 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court upheld the cancellation of a Naivasha land title, ruling the buyers failed to prove they were genuine purchasers.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nakuru against the judgment of Honourable Joseph Karanja (SPM) delivered at Naivasha on May 7, 2021, in which the respondents, suing as officials of the Naivasha Tunza Punda Youth Group, obtained cancellation of the 2nd appellant's re-issued title to Naivasha/Mwichiringiri Block 4/3505, registration of the respondents as proprietors, and a permanent injunction against the appellants. The appellants contended that the 2nd appellant's title, re-issued on May 24, 2011 after a gazette notice for loss, was valid, that the respondents held a fraudulently obtained parallel title, and that the 1st appellant was a bona fide purchaser for value whose title could not be cancelled under Section 80 of the Land Registration Act. Ombwayo J framed three issues: whether the trial magistrate erred in finding the 2nd appellant sold the land to the respondents; whether he erred in finding the 1st appellant was not a bona fide purchaser; and costs. Applying Selle v Associated Motor Boat Co, the court re-evaluated the evidence and agreed with the trial magistrate: the respondents produced a sale agreement, an acknowledgement of payment and the original title deed, while the 2nd appellant merely alleged forgery without reporting it to the authorities. The 1st appellant, who signed no agreement, gave her agent no power of attorney, and proved neither payment nor land control board consent, failed the Katende v Haridar bona fide purchaser criteria. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the 2nd appellant sold the suit property to the respondents

Holding

The trial magistrate did not err; the evidence supported the finding that the 2nd appellant sold the property to the respondents

Reasoning

The respondents produced a sale agreement for Kshs 780,000, an acknowledgement of payment signed by the 2nd appellant, and held the original title deed. The 2nd appellant merely alleged forgery but made no report to the relevant authorities. By contrast, the 1st appellant's agreement was signed by an agent without a power of attorney, and she had no proof of payment.

p. 7
02

Whether the 1st appellant was a bona fide purchaser for value

Holding

She was not; she failed to prove a valid sale agreement, payment of the purchase price or land control board consent

Reasoning

The 1st appellant admitted she did not sign the sale agreement and gave her agent no power of attorney; there was no evidence of payment of the purchase price or of land control board consent before transfer. Applying the Katende v Haridar criteria, she failed to establish the bona fide purchaser doctrine, so her title could not be shielded from cancellation.

p. 8
03

Costs of the appeal

Holding

Costs follow the event; the appellants bear the costs of the appeal

Reasoning

Section 27 of the Civil Procedure Act provides that costs follow the event. The appeal lacked merit and was dismissed, so the appellants were ordered to bear the costs of the appeal.

p. 8

Legal principles established

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  • On a first appeal the court must reconsider and evaluate the evidence afresh, making due allowance for not having seen or heard the witnesses
  • A bona fide purchaser must prove a valid certificate of title, good faith, no knowledge of fraud, valuable consideration and a vendor with apparent valid title

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The judgment of the trial magistrate dated and delivered on May 7, 2021 is upheld
  3. 3.The costs of the appeal are borne by the appellants

Authorities

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Legislation

  • Land Registration ActSection 33
  • Land Registration ActSection 80
  • Land Registration ActSection 25
  • Land ActSection 7
  • Evidence ActSection 107(1)
  • Land Control Act Cap 302 Laws of KenyaSections 6 and 7
  • Civil Procedure ActSection 27

Cases cited (6)

  • Hubert L Martin & 2 Others vs Margaret J Kumar & 5 Others
    [2016] eKLR

    Criminality and illegality in the manner the parallel title was obtained

  • Katende v Haridar & Company Limited
    [2008] 2 EA 173

    Definition and elements of the bona fide purchaser doctrine

  • Child Welfare Society of Kenya vs Republic, Ex parte Child in Focus Kenya & AG & Others
    [2017] eKLR
  • Lilian Mosonik & Another versus the Management Committee of AGC Riverside Church
    ELC Appeal No 002 of 2020
  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    [1968] EA 123

    Jurisdiction and approach of a first appellate court

  • Barnabas Biwott v Thomas Kipkorir Bundotich
    [2018] eKLR

    Quoted Selle with approval on first appellate court jurisdiction

On appeal from
Chief Magistrate's Court at Naivasha
Naivasha CM ELC No 44 of 2019 (originally Nakuru CMCC No 217 of 2012)
Jurisdiction invoked
First appellate jurisdiction over the subordinate court under the Environment and Land Court Act

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, "Magugu & another v Thendu & 2 others", Case Analysis (2023). Environment and Land Appeal 13 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18541/eng@2023-06-29

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