Makori v Barasa; Faulu Microfinance Bank Ltd (Third party) (Environment and Land Appeal E017 of 2023) [2024] KEELC 1234 (KLR)
The bottom line
#A Kenyan court upheld the eviction of a former landowner, but scrapped the Kshs. 1.5 million compensation award because it was never properly backed by evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent proved ownership of the suit property
Yes - the respondent produced a certificate of title issued by the Land Registrar, which is prima facie evidence of indefeasible ownership under Sections 24(a) and 26(1) of the Land Registration Act.
The court applied Sections 24(a) and 26(1) of the Land Registration Act, holding that a certificate of title vests absolute ownership and can be challenged only on fraud to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The green card confirmed a title issued to the respondent, shifting the burden to the appellant to displace it.
Whether the respondent obtained the suit property fraudulently
No - the appellant pleaded fraud but produced no evidence; fraud must be strictly proved to a standard higher than balance of probabilities.
The appellant alleged irregular advertisement, undervaluation and that no public auction took place, but did not produce the impugned advertisement nor prove the alleged sham auction. Applying Kinyanjui Kamau v George Kamau and Ndolo v Ndolo, the court held that allegations of fraud must be pleaded and strictly proved; the tort of fraud cannot be inferred from mere allegations of irregularity.
Whether the purchaser at a duly advertised auction owes any duty to investigate the mortgagee's right to sell
No - there is no such duty on a purchaser at a properly advertised auction.
Relying on Abdi Adan Hussein v Attorney General, Patrick Kanyagia and David Katana Ngomba, the court held that a purchaser who participates in an auction that has been duly advertised cannot be said to have engaged in fraud or a corrupt scheme, and the respondent was under no legal obligation to ensure due process was followed prior to the public auction.
Whether the award of mesne profits of Kshs. 1,500,000/= was justified
No - although pleaded, the mesne profits were not sufficiently proved since no valuation report or substantiation of the rental figures was produced.
Mesne profits are special damages which must be pleaded and proved. The respondent quoted rent figures (Kshs. 15,000/= for the main house and Kshs. 7,000/= per rental house) but gave no basis for them and produced no expert valuation. Citing Peter Mwangi Mbuthia v Samow Edin Osman and Karanja Mbugua v Marybin Holding Co. Ltd, the court found the award was neither substantiated nor established and set it aside.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme (Section 26(1) Land Registration Act).
- Fraud must be specifically pleaded and strictly proved to a standard higher than balance of probabilities but not beyond reasonable doubt.
- No duty is cast on an intending purchaser at a duly advertised auction sale to inquire into the rights of the mortgagee to sell.
- Mesne profits, being special damages, must not only be pleaded but also proved with material demonstrating how the amount claimed was computed.
Court orders
#- 1.Appeal allowed only to the extent of setting aside the order awarding Kshs. 1,500,000/= mesne profits
- 2.Eviction order against the appellant upheld
- 3.Permanent injunction restraining the appellant from entering, occupying or using East Bukusu/ South Kanduyi/4775 upheld
- 4.Appellant to pay the respondent 80% of the costs
- On appeal from
- Bungoma Chief Magistrate's Court (ELC Case No. E014 of 2020)
- E014 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment (appeal from the Principal Magistrate's ruling of 27th February 2023)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makori v Barasa; Faulu Microfinance Bank Ltd (Third party) (Environment and Land Appeal E017 of 2023) [2024] KEELC 1234 (KLR)", Case Analysis (2024). Appeal from Bungoma Chief Magistrate's Court ELC Case No. E014 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1234/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.