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ELCPartially AllowedELCA No. 2 of 2022 (lead); ELCA No. 30 of 2019 (cross-appeal)· [2024] KEELC 4347 (KLR)

Mbugua & 3 others v Watila & 3 others (Environment and Land Appeal 02 of 2020 & 30 of 2019 (Consolidated)) [2024] KEELC 4347 (KLR)

Environment and Land Court
16 May 2024
5,403 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who paid late lost the land but got his Kshs. 1.1M deposit back after the court found the seller's re-sale was irregular.

What this practically means

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Executive summary

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Two consolidated first appeals, ELCA No. 2 of 2022 (Robert Njiri Mbugua v Erustus Makari Watila & 2 Others) as lead file and ELCA No. 30 of 2019 as cross-appeal, challenged the judgment of Hon. J. Kingori (CM) in Bungoma ELC Case No. 408 of 2013. The dispute concerned a sale agreement dated 1st April 2011 over LR E. Bukusu/N. Kanduyi/4642 for Kshs. 1,500,000/=, with a Kshs. 1,200,000/= down payment and a Kshs. 300,000/= balance due by end of 2011. The appellant paid the balance late into the joint advocate's office; the 1st respondent then sold, transferred and sub-divided the land to the 2nd and 3rd respondents. The trial court had ordered a refund and dismissed the counter-claim. On appeal, the ELC, as a first appellate court applying Selle v Associated Motor Boat Co, found irregularities and illegalities in the transfer and sub-division but held the appellant himself breached the contract by late payment, disqualifying him from specific performance and general damages. The court directed a refund of Kshs. 1,200,000/= less Kshs. 100,000/= nominal damages within 90 days, ordered the appellant to vacate, issued a permanent injunction against him, awarded the 1st respondent general damages of Kshs. 100,000/=, refused mesne profits (the appellant was not a trespasser), and ordered each party to bear their own costs.

Key legal issues

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01

Whether fraud was proved against the respondents

Holding

Irregularities and illegalities were found in the transfer and sub-division, though the court stopped short of a full finding of proven fraud against the transferees in awarding reliefs

Reasoning

The court found PW2, the advocate, credible that he held the original title for safe custody. Despite the title being with the advocate, the respondents managed to transfer and sub-divide the land, which the court found suspicious and indicative of irregularities and illegalities, weighing against granting the respondents eviction relief premised on clean titles.

p. 8
02

Whether the appellant was entitled to specific performance

Holding

Refused, because the appellant did not perform all his contractual obligations, having paid the Kshs. 300,000/= balance late

Reasoning

The completion date was end of 2011, but the appellant deposited the balance with the joint advocate on 4th May 2012 after demand letters. PW2 admitted the balance was paid late. Citing Gurder Singh Birdi and Thrift Homes, the court held the appellant failed to show readiness and completeness of performance, disentitling him to the equitable remedy of specific performance.

p. 9
03

Whether the appellant is entitled to compensation/damages

Holding

Only a refund of the Kshs. 1,200,000/= deposit less nominal general damages of Kshs. 100,000/= payable by the appellant to the 1st respondent

Reasoning

The agreement was self-executing: non-payment by the completion date nullified it with the remedy being a refund of the deposit subject to damages. Since the agreement did not quantify damages, the court assessed nominal damages of Kshs. 100,000/=, directing a net refund of the difference within 90 days with liberty to execute.

p. 9
04

Whether the respondents were entitled to eviction and injunction

Holding

Eviction and permanent injunction granted, as the 1st respondent lawfully rescinded the contract and the appellant had no basis to remain in occupation

Reasoning

The court held that although irregularities attended the transfer and sub-division, the appellant was himself in breach, and the 1st respondent had exercised a right to rescind by letter dated 23rd October 2013. The appellant therefore had no business remaining on the land, and an injunction barring him from entering or re-entering was granted.

p. 9
05

Whether the 1st respondent was entitled to mesne profits

Holding

Refused; the appellant was not a trespasser as he was placed in possession by the 1st respondent pending completion

Reasoning

Mesne profits require wrongful possession. The 1st respondent himself placed the appellant in possession hoping to complete the transaction, and the appellant tendered the balance (albeit late) to the advocate. There was no proof of a demand for vacant possession, so the occupation was not wrongful and mesne profits were not awardable.

p. 10

Legal principles established

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  • A title may be impugned under section 26 of the Land Registration Act on the ground of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme
  • Fraud must be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt
  • Specific performance requires the plaintiff to have performed all his contractual undertakings
  • A purchaser placed in possession by the seller pending completion is not a trespasser liable to pay mesne profits

Court orders

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  1. 1.The 1st respondent to refund the appellant the down payment of Kshs. 1,200,000/= less Kshs. 100,000/= general damages within 90 days from the date of judgment
  2. 2.The appellant to vacate the suit property LR No. E.Bukusu/N.Kanduyi/4642 (now E.Bukusu/N.Kanduyi/6573 and 6574)
  3. 3.A permanent injunction issued against the appellant, his agents, servants and/or any other persons acting under him from interfering with LR No. E.Bukusu/N.Kanduyi/4642 (now LR No. E.Bukusu/N.Kanduyi/6573 and 6574)
  4. 4.The appellant to pay the 1st Respondent general damages in the sum of Kshs. 100,000/=
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40 and Article 40(6)
  • Land Registration ActSections 24, 25 and 26
  • Law of Contracts ActSection 3(3)
  • Civil Procedure Act (Cap 21)Section 2 (definition of mesne profits); Section 78
  • Evidence Actreferred to generally in the cross-appeal grounds

Cases cited (8)

  • Selle and another v Associated Motor Boat Company Ltd and others
    [1968] 1 EA 123
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR
  • Reliable Electricals Engineers Ltd v Mantrac Kenya Limited
    (2006) eKLR
  • Elijah Makeri Nyangwra v Stephen Mungai Njuguna & Another
    [2013] eKLR
  • Gharib Suleman Gharib v Abdulrahman Mohamed Agil
    LLR No. 750 (CAK) Civil Appeal No. 112 of 1998
  • Gurder Singh Birdi & Marinder Singh Ghatora v Abubakar Madhubuti
    Civil Appeal No. 165 of 1996
  • Thrift Homes Ltd v Kenya Investment Ltd
    2015 eKLR
  • Attorney General v Halal Meat Products Limited
    [2016] eKLR
On appeal from
Chief Magistrate's Court (ELC), Bungoma
Bungoma ELC Case No. 408 of 2013
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (appeals from the Chief Magistrate's ELC case; first appellate court mandate per Selle v Associated Motor Boat Co and Section 78 of the Civil Procedure Act)

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, "Mbugua & 3 others v Watila & 3 others (Environment and Land Appeal 02 of 2020 & 30 of 2019 (Consolidated)) [2024] KEELC 4347 (KLR)", Case Analysis (2024). ELCA No. 2 of 2022 (lead); ELCA No. 30 of 2019 (cross-appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4347/eng@2024-05-16

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