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ELCDismissedNot stated in the judgment· [2024] KEELC 4299 (KLR)

Lukase & another v Njiru Mihang’o Farmers Housing Scheme & another (Environment & Land Case 1088 of 2016) [2024] KEELC 4299 (KLR)

Environment and Land Court
9 May 2024
JOJudy Omange
1,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed land buyers' claim because they never sued or called the person who sold them the plot.

What this practically means

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Executive summary

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The Plaintiffs sued the 1st Defendant (a company operating a land-buying scheme) and the 2nd Defendant over Plot No. 633 in Mihango. They claimed they bought the plot from Stephen Musila Kamulu in October 2014 for Kshs 600,000 and were issued a plot certificate and ballot, but in September 2016 found the 2nd Defendant in occupation, alleging the 1st Defendant fraudulently resold the plot. They sought a mandatory injunction, an order for title, or in the alternative a refund of the purchase price at current market value. The 1st Defendant denied selling to the Plaintiffs; its witness (DW1) confirmed the Plaintiffs were issued a certificate on production of their agreement but testified the plot belonged to Maina Kinyua, a former official and shareholder. The 2nd Defendant testified he purchased his plot from the 1st Defendant's office for Kshs 1 million and had built and resided there since 2012. The court framed two issues: ownership and entitlement to title, and entitlement to a refund. Applying the balance of probability standard, the court found the Plaintiffs failed to prove ownership or the connection between the plot they bought and the plot the 2nd Defendant occupies, noting the vendor was neither sued nor called as a witness and that the 2nd Defendant had been in occupation before the Plaintiffs' purchase. The refund claim also failed as the contractual counterparty was not a party. The suit was dismissed with costs. Judgment was delivered on 9th May 2024 by Judy Omange, Judge.

Key legal issues

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01

Ownership of Plot 633 and entitlement to title

Holding

Plaintiffs failed to prove ownership; the vendor was not called, the plot allegedly belonged to Maina Kinyua, and the link between the plot claimed and the plot occupied by the 2nd Defendant was not established

Reasoning

The agreement was with Stephen Musila Kamulu, who was neither made a party nor called as a witness. DW1 confirmed the plot belonged to Maina Kinyua. The 2nd Defendant's evidence showed he bought and occupied the land two years before the Plaintiffs' purchase, and photographs showed it vacant when he bought it, undermining the Plaintiffs' account.

p. 3
02

Refund of the purchase price

Holding

Refund claim fails because the contractual counterparty was not sued or called as a witness

Reasoning

A refund of the purchase price can only be obtained from the party with whom the contract was made. The Plaintiffs bought from Stephen Musila Kamulu, not the 1st Defendant, and did not sue or call him, so no refund could be ordered against the Defendants.

p. 3

Legal principles established

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  • In a suit where only the plaintiff seeks orders, the burden of proof lies on the plaintiff on a balance of probability
  • A claim for refund of purchase price lies only against the party to the contract, who must be sued or called as a witness

Court orders

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  1. 1.The suit is dismissed with costs to the Defendants
Jurisdiction invoked
Original civil jurisdiction over a claim relating to land (Environment and Land Court)

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, "Lukase & another v Njiru Mihang’o Farmers Housing Scheme & another (Environment & Land Case 1088 of 2016) [2024] KEELC 4299 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4299/eng@2024-05-09

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