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ELCDismissedEnvironment & Land Case 143 of 2017· [2023] KEELC 20567 (KLR)

Maikuma Wekesa Buchunju (Suing for and on Behalf of the Estate of the Late Buchunju Kapchanga - Deceased) v Donald Wekesa Muyundo & 7 others

Environment and Land Court of Kenya
5 October 2023
8,486 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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A family lost its 40-year fight to reclaim auctioned land in Bungoma because the claim was filed decades too late.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Buchunju Kapchanga, sued to nullify the transfer of land parcel Ndivisi/Ndivisi/177 from the deceased to the 3rd defendant (1981) and then to the 1st defendant (2016), seeking declarations, cancellation of titles and an injunction. The 1st defendant counterclaimed for vacant possession, eviction, mesne profits and damages, having bought the land at a public auction on 4th December 2015 conducted by the 4th defendant at the instance of the 5th defendant, and charged it to the 2nd defendant. The 6th defendant traced its own 1976 charge and 1980 foreclosure. The court framed four issues: limitation, bona fide purchaser status, the counterclaim, and costs. It held the suit statute barred under Section 7 of the Limitation of Actions Act, the deceased having known of the sale and transfer between 1976 and 1985, and held the Section 26 fraud proviso unavailable because the property had passed to purchasers for value without notice of fraud. The 1st defendant was found an innocent purchaser for value without notice, protected under Sections 24, 25 and 26 of the Land Registration Act. Eviction was ordered within ninety days and a declaration of bona fide purchase issued, but mesne profits and damages were refused for want of proof. The plaintiff's suit was dismissed with costs to the defendants, and the 1st defendant was awarded costs of the suit and counterclaim.

Key legal issues

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01

Whether the suit is time barred

Holding

The suit was statute barred; the deceased knew of the sale and transfer between 1976 and 1985, so time ran from then, and the Section 26 proviso did not assist because the property passed to purchasers for value without notice of fraud

Reasoning

The court traced the cause of action to the 1981 transfer and the 1985 letter to the deceased's advocates, plus the 1983 case by Khaemba and the 2015 auction notice received by the family. Section 7 prescribes twelve years for land recovery. Section 26's proviso bars its use to set aside transactions affecting property purchased for valuable consideration by persons not party to the fraud and without notice of it.

02

Whether the 1st defendant is an innocent purchaser for value

Holding

Yes; he bought at a duly advertised public auction, was issued a certificate of title, and no notice of irregularity was proved against him

Reasoning

Applying the bona fide purchaser elements from Lawrence Mukiri and Katende, and the Court of Appeal principle that a purchaser at a properly advertised auction need not inquire into the mortgagee's right to sell, the court found the 1st defendant relied on the newspaper advertisement, participated in the auction and had no notice of any irregular exercise of the statutory power of sale. Fraud allegations were not proved to the heightened standard.

03

Whether the 1st defendant is entitled to eviction and vacant possession

Holding

Yes; as registered absolute proprietor under Sections 24, 25 and 26 of the Land Registration Act, and the plaintiff's rights were extinguished on the valid sale, eviction was ordered

Reasoning

The court invoked Section 26(1) of the Land Registration Act on indefeasibility, Section 24(a) on vesting of absolute ownership, and authority that the mortgagor's equity of redemption is extinguished on completion of a valid sale. Finding no illegality in the auction, it held the property should vest in the 1st defendant and ordered eviction within ninety days.

04

Whether the 1st defendant is entitled to mesne profits and damages

Holding

No; mesne profits were refused for want of proof

Reasoning

Although mesne profits were pleaded, the 1st defendant adduced no evidence quantifying the loss or the extent of the occupation. Relying on Peter Mwangi Mbuthia v Samow Edin Osman, the court held a claimant must place material before the court showing how the amount claimed was computed; absent that, the claim fails.

p. 15

Legal principles established

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  • Limitation goes to jurisdiction; a statute-barred claim cannot be entertained
  • Fraud must be specifically pleaded and proved to a standard higher than the ordinary civil standard
  • A purchaser at a duly advertised public auction owes no duty to inquire into the mortgagee's right to sell
  • The equity of redemption is lost on completion of a valid agreement for sale following exercise of statutory power of sale
  • A registered proprietor's certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or illegality to which he is party

Court orders

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  1. 1.The plaintiff's claim against the defendants is dismissed with costs
  2. 2.A declaration that the 1st Defendant is the bona fide purchaser for value of all that parcel of land known as Ndivisi/Ndivisi/177
  3. 3.An eviction order issued against the plaintiff within ninety (90) days of the judgment
  4. 4.The defendants shall have the costs of the suit and the 1st defendant shall have the costs of the suit as well as the counterclaim

Authorities

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Legislation

  • Limitation of Actions ActSections 4(1), 7, 22, 26
  • Environment and Land Court Act, No. 19 of 2011Sections 3, 13(1), (2), (3), 19
  • Land Registration ActSections 24, 25, 26(1), 101
  • Land ActSections 56(2), 80, 90(1), 96(2), 97, 98, 99(4)
  • Civil Procedure ActSections 1A, 1B, 3A, 5, 27; Section 2 (definition of mesne profits)
  • Civil Procedure RulesOrders 3, 7, 11; Order 21 Rule 13
  • Agricultural Finance Corporation Act, Cap 323Sections 19, 20, 21, 27, 33, 34
  • Auctioneers ActSection 21; Rules 15, 16, 17, 18
  • Law of Succession ActSection 66
  • Registered Land ActSection 77(3)

Cases cited (37)

  • Stephen Buoro Gitiha v Ruthiru Gatato [2017] eKLR

    Failure to serve statutory demand and redemption notices before sale

  • Micheal Gitere & Another v Kenya Commercial Bank Ltd [2018] eKLR

    Statutory notices required before exercise of power of sale

  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others (2014) eKLR

    Cited (with Malawi Railways v Nyasulu) on the plaintiff's limitation argument

  • Malawi Railways Limited v Nyasulu (1998) MWSC 3

    Cited within IEBC v Mutinda Mule on limitation

  • Marteve Guest House Limited v Njenga & 3 others

    Duties of a chargee exercising statutory power of sale

  • Railal Gordhanbhi Patel vs. Lalji Makanji (1957) EA 314

    Proof of fraud allegations

  • Paul Ngei Wolile & 2 others v Dalali Traders Auctioneers & Another [2021] eKLR

    Remedy in damages for irregular exercise of power of sale; purchaser protection

  • Simon Njoroge Mburu v Consolidated Bank of Kenya Ltd [2014] eKLR

    Purchaser at auction protection

  • Weston Gitonga & 10 others v Peter Rugu Gikanga & Another [2017] eKLR

    No evidence of purchaser's notice of irregularities

  • Samwel D. Omwenga Angwenyi vs. National Land Commission & 2 others (2019) eKLR

    Bona fide purchaser for value

  • Rajan S. Shah & Partners v Bipin P. Shah [2016] eKLR

    Mesne profits and damages for trespass

  • Jeremiah O. Samba v Samson Osano Ochi [2004] eKLR

    Mesne profits

  • Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] eKLR

    Mesne profits

  • Peter Muiu Kaliuka v Joseph Mutetei Nguli [2018] eKLR

    Mesne profits

  • Samuel Mutemi T/A Samtech Building Contractors v County Government of Machakos [2020] eKLR

    Valid contract created by charge

  • Samuel Adivane Kisago vs. Patrick Musungu (2020) eKLR

    Absolute title of registered proprietor

  • Eviline Karigu (Suing as Administratix of Estate of Late Muriungi M'Chuka alias Muriungi M'Gichuga) v Kioro [2022] eKLR

    Proof of fraud or misrepresentation

  • Nancy Kahoya Amadiva v Expert Credit Limited and Another Civil Appeal No. 133 of 2006 (Nairobi) [2015] eKLR

    Standard of proof of fraud; extinguishment of equity of redemption on sale

  • Pamba Ong'weno Amila v John Juma Kutulo Civil Appeal No.55 of 2013 (Kisumu) [2015] eKLR

    Pleading and proof of fraud

  • Etrade Limited & Another vs. Thrift Estates Limited & 2 others [2019] eKLR

    Irregularities in power of sale remediable in damages; purchaser immunized under Section 99

  • Beatrice Wambui Kiarie vs. Beatrice Wabui Kiarie & 9 others (2018) eKLR

    Limitation under Section 7 of the Limitation of Actions Act

  • Edward Moonge Lenguuranga vs James Lanaiyara & another (2019) eKLR

    Definition of cause of action

  • Bosire Ongero vs Royal Media Services [2015] eKLR

    Limitation goes to jurisdiction

  • Lawrence Mukiri v Attorney General and 4 Others [2013]

    Elements of bona fide purchaser for value

  • Katende v Haridar and Company Limited

    Definition and elements of bona fide purchaser

  • Abdi Adan Hussein & 2 others v Attorney General & 2 others [2017] eKLR

    Extent of due diligence by purchaser at public auction

  • Captain Patrick Kanyagia and Another v Damaris Wangeci and others, NBI Civil Appeal No. 150 of 1993 (unreported)

    No duty on auction purchaser to inquire into mortgagee's right to sell

  • David Katana Ngomba v Shafi Grewal Kaka [2014] eKLR

    Reiteration of no duty on auction purchaser

  • Priscilla Krobought Grant v Kenya Commercial Finance Company Ltd and others Civil Appeal No.227 of 1995 (unreported)

    Auction purchaser protected absent improper exercise of power of sale with notice

  • Muhani and Another v National Bank of Kenya Limited [1990] eKLR

    Protection of statutory power of sale

  • Ruhangi Properties Limited & 2 others v Standard Chartered Bank of Kenya Ltd & 2 others [2000] eKLR

    Higher standard of proof for fraud

  • Central Kenya Limited v Trust Bank and others CA 215/96

    Difficulties in establishing prima facie fraud; heavier burden of proof

  • Willy Kipsongok Morogo v Albert K. Morogo [2017] eKLR

    Protection of registered proprietor under Sections 24, 25, 26 of the Land Registration Act

  • Mbuthia v Jimba Credit Corporation and another

    Equity of redemption lost on completion of valid sale

  • Ze Yun Yang v Nova Industrial Products Limited [2003] 1 EA 362

    Equity of redemption extinguished on valid agreement for sale

  • Janet Mwendwa v Nancy Mavutha Musyaka [2017] eKLR

    Refusal to set aside vesting order absent impropriety in auction

  • Peter Mwangi Mbuthia & another v Samow Edin Osman [2014] eKLR

    Claimant must place material demonstrating how mesne profits were computed

Jurisdiction invoked
Sections 13(1), (2), (3) and 19 of the Environment and Land Court Act, No. 19 of 2011 and Section 101 of the Land Registration 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, "Maikuma Wekesa Buchunju (Suing for and on Behalf of the Estate of the Late Buchunju Kapchanga - Deceased) v Donald Wekesa Muyundo & 7 others", Case Analysis (2023). Environment & Land Case 143 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20567/eng@2023-10-05

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