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ELCPartially AllowedEnvironment & Land Case 100 of 2020· [2023] KEELC 19804 (KLR)

Family Shade Africa Limited v Mukuria & another

Environment and Land Court of Kenya
30 August 2023
EWE.K. Wabwoto
3,825 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that an auction buyer with a registered title wins possession, but claims for occupation rent must be specifically pleaded and proved.

What this practically means

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Executive summary

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The Plaintiff, Family Shade Africa Limited, sued James Gitaus Mukuria and Jane Wanjiku Gitau seeking a permanent injunction, eviction, mesne profits and costs over Dagoretti/Waithaka/846. The Plaintiff bought the property at a public auction on 28 May 2015 for Kshs 8,000,000 from Co-operative Bank of Kenya Limited exercising its statutory power of sale as chargee over the 1st Defendant's charged property. After a caution lodged by the 2nd Defendant was lifted in ELC Miscellaneous Application No. 300 of 2015, the Plaintiff was registered as proprietor on 16 July 2019, but the Defendants, who reside on the property as a married couple, refused to vacate. The Defendants contended the auction was illegal for want of the statutory notice under Sections 90 and 96(2) of the Land Act, absence of spousal consent, undervaluation (asserting a value of Kshs 22,000,000), and noted a pending High Court case challenging the sale. The court framed two issues: whether the sale and transfer were lawful, and whether the Plaintiff was entitled to the orders sought. It found no evidence of illegality at trial, held the Plaintiff's title prima facie and indefeasible under Section 26(1) of the Land Registration Act and protected by Article 40 of the Constitution, and found the Plaintiff had proved its case on a balance of probability. Judgment was entered for the Plaintiff: a permanent injunction issued, the Defendants were ordered to vacate within 90 days of service of the decree failing which eviction would issue, and costs were awarded to the Plaintiff. Mesne profits were refused because no amount was specifically pleaded or proved, such a claim being special damages.

Key legal issues

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01

Whether the sale and transfer of the suit property to the Plaintiff was lawful

Holding

The court found the Plaintiff purchased the property at a public auction conducted by Legacy Auctioneers and was registered as proprietor; the Defendants adduced no evidence of illegality in the sale

Reasoning

The Defendants alleged the auction was unprocedural, claiming no statutory notice was served and no spousal consent obtained, but led no evidence of illegality at trial. The Plaintiff was registered on 16 July 2019 and produced its title. Under Section 26(1) of the Land Registration Act the title is prima facie and indefeasible, and the Plaintiff's property rights are protected by Article 40 of the Constitution.

p. 6
02

Whether the Plaintiff is entitled to the orders sought in the plaint

Holding

Permanent injunction and eviction granted; mesne profits refused for want of proof; costs to the Plaintiff

Reasoning

Having found the Plaintiff proved ownership on a balance of probability and that it had been denied access, the court granted the injunction and eviction with a 90-day vacate period. Mesne profits failed because no amount was pleaded or proved, mesne profits being special damages requiring specific proof. Costs followed the event as the Plaintiff was the successful party.

p. 8

Legal principles established

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  • A certificate of title is prima facie evidence that the named person is the absolute and indefeasible proprietor, subject to encumbrances on the certificate
  • A claim for mesne profits is in the nature of special damages and must be specifically pleaded and proved

Court orders

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  1. 1.A permanent injunction restraining the Defendants from trespassing on the suit property known as Dagoretti/Waithaka/846
  2. 2.The Defendants to vacate the suit property within 90 days from the date of service of the decree, failing which an eviction order shall issue
  3. 3.Costs of the suit to be borne by the Defendants

Authorities

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Legislation

  • Land ActSection 90(1)
  • Land ActSection 96(2)
  • Land ActSection 89
  • Land ActSection 97(2)
  • Land Registration ActSections 24, 25, 26(1)
  • Civil Procedure ActSection 2 (definition of mesne profits)
  • Civil Procedure RulesOrder 21 Rule 13
  • Auctioneers Rules 1997Rule 15(b)
  • Constitution of KenyaArticle 40

Cases cited (10)

  • Bii Vs. Kenya Commercial Bank Limited
    (2001) KLR 458

    Once property is offered as security it becomes a commodity for sale whose loss cannot be compensated in damages

  • Nancy Khoya Amadiva Vs. Expert Credit Limited and Another
    Civil Appeal No. 133 of 2006
  • David Katana Ng'ombe Vs Shafi Grewal Kaka
    Civil Appeal No. 43 of 2011
  • Margaret Karwira Mwongera Vs Francis Kofo
    (2019) eKLR
  • Albert Mariod Cordeiro & Another Vs Vishram Shamji
    (2015) eKLR

    Distinction between redemption notice under Auctioneers Act and notice to sell under section 96(2) of the Land Act; both mandatory and separate

  • David Limo Bundotich V Housing Finance Company of Kenya Limited
    (2022) eKLR

    Absent a notice to sell under section 96(2) of the Land Act, statutory power of sale does not legally accrue even if a redemption notice issued

  • Kenya National Highway Authority –Vs- Shalien Masood Mughal & 5 others
    (2017) eKLR
  • Republic –Vs- Minister for Transport & Communications & 5 others Exparte Waaship Garbage Collection & 15 others
    Mombasa HCMCA No. 617 of 2003 (2006) 1 KLR (E & L) 563
  • Attorney General vs Halal Meat Products Limited
    [2016] eKLR

    Mesne profits are profits accrued during the time the rightful owner was excluded from his land

  • Peter Mwangi Mbuthia & Another vs Samow Edin Osman
    [2014] eKLR

    Claimant must place material before court demonstrating how mesne profits amount was arrived at

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land at Dagoretti/Waithaka/846 (Article 162(2)(b) of the Constitution, as the court is the ELC; 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, "Family Shade Africa Limited v Mukuria & another", Case Analysis (2023). Environment & Land Case 100 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19804/eng@2023-08-30

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