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ELCDismissedNot stated in extract· [2024] KEELC 5299 (KLR)

Enos & 33 others v Kiarie & another (Environment & Land Case 523 of 2018) [2024] KEELC 5299 (KLR)

Environment and Land Court
11 July 2024
LMLucy N. Mbugua
7,306 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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34 land buyers lost their claim to an Embakasi parcel, with eviction ordered, because their seller never legally owned the land they sold.

What this practically means

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Executive summary

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Thirty-four plaintiffs sued over sub-plots excised from LR No. 6845/154 Embakasi, which they purchased from Tafuta Developments Limited (2nd Defendant) or intermediate purchasers, seeking a permanent injunction, declarations of constructive trust and entitlement to registration, mandamus to subdivide and issue titles, or alternatively compensation at market value with interest. The 1st Defendant, registered proprietor as administrator of her deceased husband's estate, counterclaimed for eviction and a permanent injunction, relying on her victory against Tafuta in ELC 626 of 2009 decided on 9.2.2018, in which Tafuta was ordered evicted. Tafuta entered appearance but did not defend. The court framed three issues and held that the plaintiffs' claims, being wholly derivative of Tafuta's rights, could not stand: ELC 626 of 2009 had found Tafuta had no rights over the parcel, so no adverse possession could be derived from it, and the filing of suit by the true owner in 2009 interrupted any possession-based claim. Constructive trust also failed for want of any fiduciary relationship. The court held the plaintiffs, though not parties to the prior suit, were estopped from attacking that judgment and should instead have sought to be heard in that forum. The alternative compensation claim failed against the 1st Defendant for want of evidence of acquiescence, and against Tafuta because its culpable directors were not joined - awarding damages otherwise would sanitize fraud. The plaintiffs' occupation was held to be trespass. Final orders: the suit was dismissed with costs and interest on costs to the 1st Defendant; the counterclaim was allowed with a permanent injunction and an eviction order requiring demolition of buildings within 45 days.

Key legal issues

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01

Whether plaintiffs acquired rights by adverse possession or constructive trust

Holding

Both claims fail; Tafuta had no title from which adverse possession could derive, and no fiduciary relationship existed to found a constructive trust

Reasoning

The court in ELC 626 of 2009 found Tafuta had no rights over the suit parcel, so plaintiffs' derivative claims are rooted in nothing ('ex nihilo nihil fit'). Filing of suit by the true owner in 2009 interrupted any adverse possession claim. Constructive trust fails because Tafuta never held the land fiduciarily for purchasers and the 1st Defendant has no relationship with the plaintiffs capable of founding a trust.

p. 12
02

Whether plaintiffs, not being parties to ELC 626 of 2009, could challenge its effect

Holding

Plaintiffs are estopped from trashing the prior judgment; their remedy was to return to that forum to seek joinder/hearing

Reasoning

Relying on Evans Simiyu Sundwa v Tawai Limited, a party left out of proceedings should return to the same forum and request to be heard rather than relitigate the same issues. The plaintiffs' occupation had been marked by caveat emptor notices in 2009 and injunctive orders of 18.5.2010, evidencing the 1st Defendant's efforts to ward off trespassers.

p. 11
03

Whether plaintiffs are entitled to compensation from either defendant

Holding

No; the acquiescence claim against the 1st Defendant is unsupported, and compensation against Tafuta without its culpable directors would legitimize fraud

Reasoning

The plaint's averment that the defendants acquiesced and permitted occupation is not supported by evidence against the 1st Defendant, who in fact obtained injunctive orders against further disposals. Plaintiffs failed to conduct due diligence, and the directors Gachau and Mbithi who peddled the sale by a man dead since 1993 were not joined; awarding damages absent them would amount to sanitizing conmanship.

p. 12
04

Whether the 1st Defendant's counterclaim for eviction and injunction is merited

Holding

Yes; plaintiffs are trespassers and eviction with permanent injunction is granted

Reasoning

Given the failure of the plaintiffs' claims and the subsisting judgment in ELC 626 of 2009, their occupation amounts to trespass. Following the Kirima case, the court granted a permanent injunction and eviction order, with buildings to be demolished within 45 days.

p. 13

Legal principles established

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  • A party who was not joined in prior proceedings cannot collaterally attack the judgment in that matter; he must return to the same forum to seek to be heard
  • Filing of suit by the true owner interrupts a claim of adverse possession
  • Adverse possession must be hostile possession under a claim or colour of title, and cannot be derived from a party with no title
  • Trespassers on registered land are liable to eviction, injunction and damages

Court orders

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  1. 1.Plaintiffs' suit dismissed with costs, plus interest on costs at court's rates to the 1st defendant
  2. 2.Counterclaim of the 1st defendant allowed
  3. 3.Permanent injunction issued against the plaintiffs, their beneficiaries, tenants, agents, servants, purchasers, and employees from trespassing, living on, or interfering in any way with parcel L.R Number 6845/154
  4. 4.Order for eviction of the plaintiffs, their beneficiaries, agents, servants, tenants, purchasers and employees from parcel L.R. No. 6845/154, with any building erected therein to be demolished within 45 days from the date of delivery of the judgment

Authorities

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Legislation

  • Limitation of Actions ActSections 9(1), 17, 20(1)
  • Land Registration Act, No. 3 of 2012Sections 24, 25, 26, 28
  • Civil Procedure ActSection 88
  • Civil Procedure RulesOrder 19 Rule 1
  • Evidence ActSections 107, 109
  • Trespass ActSection 3(1)
  • Constitution of KenyaArticle 40(6)

Cases cited (12)

  • Stanley Mombo Amuti v Kenya Anti-Corruption Commission
    [2019] eKLR
  • Juletabi African Adventure Limited & another v Christopher Michael Lockley
    [2017] eKLR
  • Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others
    [2015] eKLR
  • Teresiah Wanjiku Koigi v Lincoln Wariua Nginyo
    [2022] eKLR
  • Dr. Joseph N.K. arap Ngo'k v Justice Moijo Ole Keiuwa and others
    Nairobi Civil Application No. Nai 60 of 1997 (unreported)
  • Wreck Motors Enterprises v The Commissioner of Lands and others
    Nairobi Civil Appeal No. 71 of 1997 (unreported)
  • Nairobi Permanent Markets Society and others v Salima Enterprises and others
    Nairobi Civil Appeal No. 185 of 1997 (unreported)
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    [2013] eKLR
  • Evans Simiyu Sundwa & 97 others v Tawai Limited & 16 others
    [2022] eKLR
  • James Maina Kinya v Gerald Kwendaka
    [2018] eKLR
  • Kweyu v. Omuto
    [1990] KLR
  • Obade & 299 others & 10 others v Kirima & 60 others (The Kirima case)
    [2023] KEELC 20868 (KLR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited in extract)

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, "Enos & 33 others v Kiarie & another (Environment & Land Case 523 of 2018) [2024] KEELC 5299 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5299/eng@2024-07-11

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