Esther Muthoni Passaris v Charles Kanyuga Maina & 3 others (Consolidated with Alka Roshanlal Hanspal v Esther Muthoni Passaris)
The bottom line
#The court upheld Passaris's right to buy the Kitisuru property for Kshs 35 million, voided the later sale to other buyers, and cancelled their title.
What this practically means
#Executive summary
#Key legal issues
#Validity of the lease agreement of 1st September 2006 with the option to purchase
The agreement was duly signed by the plaintiff and the 3rd Defendant and witnessed by advocates; the 3rd Defendant acted as the late Kultar's agent and the prohibitory order only bound Kultar; the option to purchase is valid and enforceable against the estate.
The court found the lease signed by both parties and attested by advocates, satisfying Section 3(3) of the Law of Contract Act. The 3rd Defendant admitted signing and had executed similar leases as agent for Kultar. The 2003 prohibitory order emanated from her own application against Kultar and did not bar her. Following Mega Garment and Simona Rizzoti, the unregistered lease is enforceable inter partes, and following Anne Murambi, the option survived Kultar's demise against his estate.
Validity of the sale and transfer to the 1st and 2nd Defendants
The sale and transfer were null and void as they offended lis pendens and were founded on an irregularly acquired Provisional Title.
At the time of the 2014 sale, the property was subject to ELC 1171 of 2013, a prohibitory order and injunctions. The Provisional Title was obtained through a Loss of Title Affidavit containing contradictory claims about the deed of gift while the original title was with Oriental Bank. Under Section 80 of the Land Registration Act, registrations obtained by fraud or mistake may be cancelled, and no valid interest could pass to the purchasers.
Whether the 1st and 2nd Defendants were bona fide purchasers for value
They were not bona fide purchasers for value without notice.
The 1st Defendant admitted awareness of court proceedings over the property but chose not to get involved; the search was conducted after the sale agreement; the property was occupied and subject to a succession matter. The court held that due diligence required interrogating the questionable entries on the title, including how the prohibitory order was lifted and how the Provisional Title issued. Reliance placed on Arthi Highway Developers.
Whether the plaintiff is entitled to the reliefs sought
The plaintiff succeeded; she obtained specific performance of the option to purchase at Kshs. 35,000,000, cancellation of the defendants' registrations, and injunctions protecting her possession.
Having exercised the option by three months' notice in March 2009 and remained ready and willing to pay, the plaintiff was entitled to specific performance. The court relied on Lucy Njeri Njoroge v Kanyaje Njoroge on the enforceability of a subsisting sale contract, and ordered rectification of the register under Section 80 of the Land Registration Act.
Legal principles established
#- An unregistered lease or agreement creating a right to obtain another document is valid inter partes and enforceable as a contract, though it gives no protection against third parties.
- The death of a vendor does not terminate a contract executed on his behalf; it remains binding on his estate and personal representatives.
- Alienation of property during the pendency of litigation over it offends the doctrine of lis pendens and cannot confer a valid title.
- A title founded on fraud, irregularity or a corrupt scheme is vitiated and the register may be rectified under Section 80 of the Land Registration Act.
- Due diligence in purchasing land requires more than a search and a face-value impression; a purchaser must interrogate questionable entries on the title and the circumstances of occupation.
Court orders
#- 1.Declaration that the plaintiff has the right to exercise the option to purchase LR No. 7741/75 from the estate of the late Kultar Singh Hanspal (through the 3rd defendant) upon payment of Kshs. 35,000,000
- 2.Order of specific performance of the option to purchase upon payment of Kshs. 35,000,000 within ninety (90) days from the date of judgment
- 3.Order compelling the 3rd defendant to execute transfer of LR No. 7741/75 in favour of the plaintiff upon payment of Kshs. 35,000,000, in default the Deputy Registrar to execute the necessary documents free from any encumbrances
- 4.Declaration that the sale and transfer of LR No. 7741/75 by the 3rd defendant to the 1st and 2nd defendants is null and void
- 5.Direction to the Chief Land Registrar to revoke and/or cancel the registration of LR No. 7741/75 Kitisuru in favour of the 1st and 2nd defendants and cancel all entries effecting the transfer within ninety (90) days
- 6.Permanent injunction restraining the 1st and 2nd defendants from selling, transferring, charging, mortgaging, leasing, pledging or otherwise dealing with or alienating LR No. 7741/75 Kitisuru
- 7.Permanent injunction restraining the 1st, 2nd and 3rd defendants from evicting, distressing for rent, trespassing, or interfering with the plaintiff's quiet possession of LR No. 7741/75 Kitisuru
- 8.Costs of the suit to the plaintiff
- 9.The 1st and 2nd Defendants' Counterclaim dated 15th December 2014 dismissed in totality with costs to the Plaintiff
- 10.The 3rd defendant's counterclaim in ELC 1256 of 2014 dismissed
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over disputes relating to title and occupation of land (LR No. 7741/75 Kitisuru)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (9)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- ARC Packaging Limited & another v Sundries Bargains (Nairobi) Limited & another[2023] KEELC 17492 (KLR)25 May 2023applied
- Mau Resort Limited v Narok County Government (Environment & Land Case 181 of 2017) [2022] KEELC 3112 (KLR)[2022] KEELC 3112 (KLR)30 Jun 2022
- Republic v Land Adjudication & Settlement Officer Tigania East Interested Party Moses Ng’ere Lithira: Exparte Francis Kamathia Mugambi [2018] KEELC 257 (KLR)[2018] KEELC 257 (KLR)7 Dec 2018
- SuperSport (Plaintiff) v Football Kenya Federation (Defendant) - Application for Interlocutory Injunction (Reasons for Ex Tempore Ruling)[2017] KEHC 1629 (KLR)22 Dec 2017applied
- Ocean Foods Limited v Osotspa Company Limited & 2 Others (ruling on cross-applications for interlocutory injunctions)[2017] KEHC 2385 (KLR)31 Oct 2017applied
- Cyrus Muriuki Mathangani v Rose Wanjiku Mbai [2017] KEELC 2784 (KLR)[2017] KEELC 2784 (KLR)9 Feb 2017followed
- Joseph Kaburu Kiragu v Duncan Ndung’u Ndirangu [2016] KEELC 94 (KLR)[2016] KEELC 94 (KLR)6 Dec 2016applied
- Abraham Lenaiya Lankeu v Respondent (Notice of Motion dated 2nd June 2016, arising from PMCC No. 795 of 2015)[2016] KEHC 3129 (KLR)22 Jul 2016applied
- Kenya Universities and Colleges Central Placement Service (KUCCPS) v Kenya Medical Training College (KMTC)[2015] KEHC 7775 (KLR)23 Sept 2015applied
Cite this brief
#Cite this brief
Caselaw, "Esther Muthoni Passaris v Charles Kanyuga Maina & 3 others (Consolidated with Alka Roshanlal Hanspal v Esther Muthoni Passaris)", Case Analysis (2023). ELC 1256 of 2014 & 1171 of 2013 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20786/eng@2023-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.