Omar (Suing as legal representative of the Estate of Warsame Omar Farah) v Abdi & 4 others (Environment and Land Case E218 of 2020) [2024] KEELC 4010 (KLR)
The bottom line
#A Nairobi buyer who paid KES 15 million for land he didn't buy from the owner got his money back with interest but lost the land itself.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to attach a verifying affidavit to an amended amended plaint renders the suit incompetent
Yes, the requirement applies to the operative plaint, but the failure was excusable under Article 159(2)(d) and the suit was not struck out
The court held Order 4 Rule 1(2) of the Civil Procedure Rules requires the operative plaint to be accompanied by a verifying affidavit, rejecting the Plaintiff's submission that only the original plaint required one. Amendments supersede the original plaint and its affidavit. However, invoking the Supreme Court's Moses Mwicigi decision and Article 159(2)(d), the court excused the lapse while warning counsel against flouting procedure.
Whether the Plaintiff was entitled to specific performance
No; specific performance was refused
The vendor (1st Defendant) was never the registered owner, and the purchaser knew the property belonged to the 2nd Defendant, who was not party to the agreement - privity of contract bars enforcement against the 2nd Defendant. Further, the property is charged to NCBA Bank Kenya PLC, a non-party whose rights would be prejudiced without a hearing contrary to Article 50(1). Specific performance against the 1st Defendant would be futile as he does not own the property.
Whether the refund claim was statute barred
No; the claim was not time barred and was meritorious against the 1st Defendant
Letters by M/s Mohammed & Muigai LLP Advocates (26th September 2017 and 7th December 2017) and by M/s Yunis & Associates (28th July 2017) acknowledged the debt and offered refund. Limitation runs from the last acknowledgement. The payment of Kes.15,000,000 was uncontroverted - the 1st Defendant filed no defence or evidence, and DW1 confirmed receipt. The claim for refund therefore succeeded against the 1st Defendant.
Whether the Plaintiff acquired title by adverse possession
No; adverse possession was not established
The Plaintiff admitted entering as a tenant, and in 2011 executed a sale agreement over the portion - inconsistent with hostile possession. A purchaser in occupation pending completion is there under the contract, not adversely, per Sisto Wambugu v Kamau Njuguna. The claims for specific performance and adverse possession are antithetical and cannot be pursued simultaneously. Reliance on Sections 7 and 12 of the Limitation of Actions Act therefore failed.
Whether the 2nd Defendant's counterclaim succeeded
Partially; declaration of illegality of the agreement, vacant possession and permanent injunction granted, but rent arrears claim failed
No tenancy agreement was produced; Section 3(3) of the Law of Contract Act requires interests in land dispositions to be in writing. Rent arrears (special damages) were not pleaded or proved - DW1 admitted the deceased collected the rents - and the claim was largely statute barred. However, the 2nd Defendant as registered owner under Sections 24 and 25 of the Land Registration Act is entitled to vacant possession and a permanent injunction.
Legal principles established
#- An amended or further amended plaint must be accompanied by its own verifying affidavit, because the amendment supersedes the original plaint and its verifying affidavit
- A contract binds only the parties to it; the doctrine of privity of contract shields a non-party registered owner from specific performance of a sale agreement made by another
- An acknowledgement of debt restarts limitation for a claim for refund of purchase price
- A claim for specific performance and a claim for adverse possession are inconsistent and cannot be pursued simultaneously
- A claim for rent arrears is a claim for special damages which must be specifically pleaded and strictly proved
Court orders
#- 1.Judgment for the Plaintiff: refund of Kes.15,000,000/= being the purchase price paid to the 1st Defendant
- 2.The refund of Kes.15,000,000/= shall attract interest at court rates (14%) w.e.f 20th May 2011 until payment in full
- 3.The refund shall be recovered from the 1st Defendant
- 4.The rest of the prayers at the foot of the amended amended Plaint are declined
- 5.Judgment for the 2nd Defendant on the counterclaim: a declaration that the agreement dated 20th May 2011 is illegal and unenforceable as against the 2nd Defendant
- 6.The Plaintiff to vacate and hand over vacant possession of the portion of the suit property under his occupation within 180 days from the date of the judgment
- 7.In default of vacating, the 2nd Defendant shall be at liberty to levy eviction and an eviction order shall issue
- 8.Costs/expenses of any eviction to be certified by the Deputy Registrar and recovered from the Plaintiff
- 9.Upon recovery of vacant possession, a permanent injunction to restrain the Plaintiff from entering upon or remaining on LR No. 37/714 or any portion thereof
- 10.Any other relief at the foot of the counterclaim not expressly granted is dismissed
- 11.Each party to bear their own costs
- Jurisdiction invoked
- Original civil jurisdiction (land dispute; suit commenced by plaint; no constitutional/statutory basis invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar (Suing as legal representative of the Estate of Warsame Omar Farah) v Abdi & 4 others (Environment and Land Case E218 of 2020) [2024] KEELC 4010 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4010/eng@2024-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.