Osundwa v Buluma & 3 others (Environment & Land Case 18 of 2014) [2024] KEELC 4938 (KLR)

Environment and Land Court

13 June 2024

ECE.C. Cherono

2,765 words in judgment

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The bottom line

A Kenyan court took away a landowner's title because she hid a 1983 sale when transferring the land to herself through succession.

What this practically means

Executive summary

The plaintiff, Mary Osundwa, sued for eviction of the defendants from land parcel No. Ndivisi/Muchi/198, which she held in her name following transmission as sole administratrix of the estate of her deceased husband, Andrew Osundwa Ekumba. She sought vacant possession, costs and interest, asserting her registered title was absolute. The defendants resisted, contending their father, Francis Barasa Buluma, purchased the suit land from the plaintiff's husband on 9th May 1983 under a written agreement attested by an advocate, took possession until his death in 2014, and paid the balance of the purchase price directly to AFC, which held a charge over the land. The court framed two issues: entitlement to eviction and costs. It held that the 1983 agreement was valid: it was attested by advocate J.M. Wafula, and in any event the attestation requirement in section 3(3) of the Law of Contract Act came into force on 1st June 2003 and does not apply to earlier contracts, applying the Court of Appeal decision in Peter Mbiri Michuki v Samuel Mugo Michuki. The court found the green card showed the plaintiff placed a caution in 1989 after Francis Buluma's 1986 caution, discrediting her denial of knowledge of the sale, and that the purchase price was paid to AFC unrebutted. Accordingly, the plaintiff's title was procured by misrepresentation and was impeachable under sections 24 and 26(1) of the Land Registration Act. The suit was dismissed with costs to the defendants.

Key legal issues

Whether the 1983 sale agreement between Andrew Osundwa and Francis Buluma was valid notwithstanding the attestation requirements of Section 3(3) of the Law of Contract Act

Holding

The agreement was valid. It was executed before an advocate who attested it, and in any event Section 3(3) as amended came into effect on 1st June 2003 and does not apply to a 1983 contract.

Reasoning

The court examined the agreement and found it was signed by both parties in the presence of advocate J.M. Wafula, who attested by signature and stamp. The court further noted superior court authority that the 2003 attestation amendment was prospective only, with section 3(7) excluding pre-commencement contracts, so the pre-2003 doctrine of part-performance era framework did not invalidate the 1983 agreement.

p. 4

Whether the plaintiff's title was indefeasible and entitled her to eviction of the defendants

Holding

The plaintiff's title was impeached: she misrepresented information in the succession cause and at the lands office, having been aware of the sale. Her suit was dismissed.

Reasoning

Although the plaintiff held title, section 26(1) of the Land Registration Act permits challenge where title is procured by fraud or misrepresentation to which the proprietor is party. The green card showed she placed a caution in 1989 after Francis Buluma's 1986 caution, undermining her denial of knowledge of the sale. The defendants proved the purchase price was paid to AFC, which the plaintiff did not rebut.

p. 5

Who bears the costs of the suit

Holding

The defendants, as the successful party, are entitled to costs.

Reasoning

Under section 27 of the Civil Procedure Act costs follow the event unless the court orders otherwise for good reason. The defendants successfully defended the claim, so costs were awarded to them.

p. 6

Legal principles established

Registration of a person as proprietor of land vests absolute ownership, subject to impeachment for fraud, misrepresentation, or illegal/unprocedural acquisition
A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation to which the proprietor is party, or where acquired illegally, unprocedurally or through a corrupt scheme
Section 3(3) of the Law of Contract Act, as amended with effect from 1st June 2003, does not apply retroactively to contracts concluded before its commencement
Costs follow the event under Section 27 of the Civil Procedure Act

Court orders

1.The plaintiff's suit is dismissed with costs to the defendants

Authorities

Legislation

Land Registration ActSection 24(a)
Land Registration ActSection 26(1)
Registered Land Act (repealed)Sections 23(1) and 27(1); Section 28
Law of Contract ActSections 3(3) and 3(7)
Civil Procedure ActSection 27
Civil Procedure RulesOrder 11

Cases cited (1)

Peter Mbiri Michuki v Samuel Mugo Michuki
[2014] eKLR, Civil Appeal Number 22 of 2013

Jurisdiction invoked: Original jurisdiction of the Environment and Land Court over land disputes

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Osundwa v Buluma & 3 others (Environment & Land Case 18 of 2014) [2024] KEELC 4938 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4938/eng@2024-06-13

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