Kijogi & another (As Legal Representatives of the Estate of Jerevasio Mitambo – Deceased) v M’murithi & 4 others (Enviromental and Land Originating Summons 40 of 2019) [2024] KEELC 3777 (KLR)
The bottom line
#A Meru court cancelled land titles and a bank charge because the land was transferred and mortgaged while a court case over it was still ongoing.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is not res judicata; the previous suit was a contractual claim and adverse possession was never heard and determined
The court held the defendants produced no material showing adverse possession was previously litigated to finality; the earlier Meru CMCC No. 223 of 1996 was a claim for rescission of contract, not adverse possession, and the earlier ruling of 13.10.2021 had already found the suit not res judicata.
Lis pendens and dealing with land subject to court orders
The 1st, 2nd and 4th defendants dealt with the suit land in defiance of pending litigation and interim orders; the resulting subdivision, transfer and charge were nullities
The 4th defendant knew of active litigation when he acquired the land and charged it to the 5th defendant while concealing pending suits and orders. Citing Macfoy v United Africa Ltd, acts founded on a nullity are incurably bad; the title to L.R Nos. 3537 & 3538 was therefore cancelled under section 80 of the Land Registration Act.
Adverse possession
The plaintiffs proved adverse possession; the deceased remained in occupation from 1996 with acts inconsistent with the registered owner's rights
The exchange agreement was never completed: vacant possession of the exchanged land was never handed over and no evidence of the 1st defendant's compliance was availed. The defendants acknowledged trespass/occupation from 1996, when the plaintiffs erected dwelling houses, and never effected any re-entry. Possession from 1996 exceeded twelve years, conferring title by adverse possession.
5th defendant's due diligence and charge
The chargee failed to investigate the history of the title or establish possession before advancing the loan
The 5th defendant produced no record of the title's history, did not ascertain who was in possession, and its own valuation report showed buildings on the land. Financiers, though lenders not purchasers, bear the risk where the charged property turns out to be problematic, especially with overriding interests and pending litigation known to the chargor.
Legal principles established
#- A party who benefits from the bona fide purchaser defence must investigate the history of the land and go to the root of the title, not merely rely on the face of the title
- Financial institutions are lenders, not purchasers, and are nonetheless exposed where the charged title was acquired during pendency of litigation and concealment of material facts renders the dealing a nullity
- The doctrine of lis pendens binds parties who deal with suit property during pending litigation, whether or not they had notice
Court orders
#- 1.A declaration that the defendants hold L.R No. Nkuene/Taita/627 and its resultant subdivisions L.R No. 1198 (later subdivided into L.R Nos. 3537 & 3538), 1199, 1200, 1201, 1202 & 1203 in trust for the estate of the late Jerevasio Mitambo
- 2.Cancellation and invalidation of the title deeds for L.R Nos. 3537 & 3538 under section 80 of the Land Registration Act for being a nullity, to revert to L.R No. 1198
- 3.The parcels to be re-transferred to the estate of the late Jerevasio Mitambo within two months, in default the Deputy Registrar to execute the transfers
- 4.Costs to the plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nganga & another v Gichuhi (Enviromental and Land Originating Summons E016 of 2022) [2024] KEELC 6184 (KLR)[2024] KEELC 6184 (KLR)26 Sept 2024
- Nganga & another v Gichuhi (Enviromental and Land Originating Summons E016 of 2022) [2024] KEELC 6184 (KLR)[2024] KEELC 6184 (KLR)26 Sept 2024applied
Cite this brief
#Cite this brief
Caselaw, "Kijogi & another (As Legal Representatives of the Estate of Jerevasio Mitambo – Deceased) v M’murithi & 4 others (Enviromental and Land Originating Summons 40 of 2019) [2024] KEELC 3777 (KLR)", Case Analysis (2024). ELCA 40 (OS) of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3777/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.