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ELCPartially AllowedELC Case of 2012 (Nairobi) - not stated in judgment· [2024] KEELC 5313 (KLR)

Olympic Trading Company Limited v Mohamed; Basabra (Suing as the Administrator of the Estate of the Late Said Omar Mohamed Basabra) (Plaintiff); Olympic Trading Company Limited & 3 others (Defendant) (Environment & Land Case 259 of 2012) [2024] KEELC 5313 (KLR)

Environment and Land Court
11 July 2024
14,458 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~58 min to read original · ~4 min brief

The bottom line

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A Nairobi land buyer lost her Kshs 130 million property because the seller couldn't prove it ever legally owned the land.

What this practically means

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Executive summary

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The Plaintiff company sued the Defendant (administrator of the estate of Said Mohamed) seeking injunctions, a declaration of ownership, damages for trespass and vacant possession of L.R No. 2/206, Kilimani (converted to Nairobi/Block 17/318). The Defendant counterclaimed for a declaration of ownership of the estate, an order that the Plaintiff's conversion and sale were fraudulent and void, cancellation of the conversion, damages of Kshs 100,000,000 for demolished structures and general damages for loss of user. The 2nd Defendant, a purchaser of the property from the Plaintiff for Kshs 130,000,000 in 2013, counterclaimed against co-defendants for liquidated damages and project losses; the 3rd and 4th Defendants (land registrars) were defended by the Attorney General. After a full trial, the court framed two questions: entitlement to the property and entitlement to damages. Tracing both chains of title to Jadwiga Wincza, the court found the Defendant's chain through Mohamed Jama Noor proved by registry entries, mortgage and correspondence, while the Plaintiff's chain through Ronyi Kiptoo was unsupported, and the Defendant was in occupation until displaced in 2012. The court held that the Plaintiff acquired title illegally, converted it fraudulently and sold it during the pendency of the suit in breach of lis pendens; the 2nd Defendant's due diligence was suspect. The Plaintiff's suit was dismissed and the Defendant's counterclaim allowed with a declaration of ownership, cancellation of the conversion, mandatory vacant possession and general damages of Kshs 50,000,000 with interest and costs; the Kshs 100,000,000 special damages claim failed for want of proof. The 2nd Defendant recovered only Kshs 17,120,000 for preliminary works against the Plaintiff; her other claims were dismissed.

Key legal issues

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01

Root of title and competing chains of title

Holding

The Defendant's chain of title from Jadwiga Wincza through Mohamed Jama Noor was proved; the Plaintiff's chain through Ronyi Kiptoo was not, and the Plaintiff's later conversion and sale were fraudulent and void

Reasoning

The court interrogated the registry documents, finding entry 411/19 in favour of Mohamed Jama Noor corroborated by the mortgage in favour of EABS and correspondence, while the Plaintiff's conveyance of 5/12/1988 and the conversion to RLA were tainted. The Defendant was in occupation as owner until displaced in May 2012.

p. 20
02

Bonafide purchaser for value without notice

Holding

The 2nd Defendant's due diligence was suspect because she was shown vacant land while the Plaintiff claimed occupation by guards; and her acquisition was in breach of lis pendens

Reasoning

The sale to the 2nd Defendant occurred almost a year after suit was filed, breaching lis pendens, and discrepancies between the claimed vacant land and the Plaintiff's evidence of guards and structures ought to have alerted her. Her remedies lie against her co-defendants, not the original Defendant.

p. 24
03

Special damages must be specifically pleaded and proved

Holding

Kshs 100,000,000 demolition claim failed for want of proof; only general damages assessed at Kshs 50,000,000 were awarded

Reasoning

No valuer was called and no documents proved the demolition loss. The court however found unlawful eviction and loss of use proved and assessed general damages at Kshs 50,000,000 in a high-end Kilimani location.

p. 24
04

Possession as corroboration of ownership

Holding

The Defendant demonstrated possession via utility bills, rates payments, tenancy agreements and the Plaintiff's own demand letter acknowledging occupation

Reasoning

Water and electricity bills could only accrue if someone occupied and used the property; the Plaintiff produced no corroborating witness or documents predating 2012, and its demand letter acknowledged the Defendant's occupation.

p. 22

Legal principles established

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  • Where a title is under challenge, the holder must explain the root of title, not merely produce the title document
  • A party whose root title fails cannot pass good title to a subsequent purchaser, and such purchaser's remedies lie against the vendor
  • A counterclaim against a co-defendant mislabelled is a curable procedural technicality under article 159(2)(d)

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.A declaration that the Defendant's estate is the owner of the property known as Land Reference Number 2/206, Nairobi
  3. 3.An order declaring the conversion of title and the sale and transfer of the suit property fraudulent and illegal, thus void
  4. 4.An order directing the 3rd and 4th Defendants to revoke and cancel the illegal conversion of title from L.R 2/206 to Nairobi/Block 17/318
  5. 5.A declaration that the invasion of the land by the 1st Defendant and the subsequent evictions and demolitions was unlawful
  6. 6.A permanent mandatory order against the 2nd Defendant to vacate the suit premises and hand over vacant possession to the Defendant
  7. 7.General damages of Kshs 50,000,000 for loss of user, demolished structures and trespass payable by the Plaintiff within 120 days, with interest at court rates
  8. 8.Costs of the counter-claim to the Defendant
  9. 9.General damages of Kshs 17,120,000 to the 2nd Defendant in the counter-claim, payable by the Plaintiff within 120 days

Authorities

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Legislation

  • Land Registration ActSection 26; Section 35(2); Section 14; Section 39(1) (Cap 300, repealed)
  • Evidence ActSections 107-109; Section 68(2)(c)
  • Law of Contract ActSection 3(3) and pre-1964 section 3
  • Registered Land Act (repealed)Section 8
  • Stamp Duty ActSection 10
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 8 rule 2; Order VII rule 2

Cases cited (27)

  • Mapis Investment (K) Limited vs Kenya Railways Corporation
    [2006] eKLR
  • Kenya Pipeline Company Limited v Glencore Energy (UK) Ltd
    [2015] eKLR
  • C O Okere v Esther Nduta Kiiyukia & 2 others
    [2019]
  • Kuria Kiarie v Sammy Magera
    (2017) eKLR / [2018] eKLR
  • Amos Kinyuru Kinani V Housing Finance Company Limited & another
    [2008] eKLR
  • Mary Njoki Mburu & another V. Josphat Kamande Kiarie & another, Stephen Harrison Ndungu & another (Interested Party)
    [2019] eKLR
  • Chemei Investments Limited —vs- The Attorney General & Others
    Nairobi Petition No. 94 of 2005
  • Herbert L. Martin & 2 Others V. Margaret J. Kamar & 5 Others
    [2016] eKLR
  • Satwant Singh Dhanjal 2 Others V. Kenya Revenue Authority
    [2005] eKLR
  • James Mogunde Mogunde V. Fat JIU Micro Finance Bank Limited
  • Alice Chemutai Too V. Nickson Kipkurui Korir & 2 Others
    [2015] eKLR
  • Kenya Airways Limited V. Satwant Singh Flora
    [2013] eKLR
  • Richard Munene v Republic
    2018 eKLR
  • Standard Chartered Bank Kenya Ltd v Intercom Services Ltd & 4 others
    [2004] eKLR
  • Pashito Holdings & Anor -VS- Ndung'u & 2 others
    KLR (E&L) 295
  • Attorney General -Vs- Kenya Commercial Bank Ltd & 3 others
    (2004) eKLR
  • Fanikiwa Limited & 3 others and Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others
    [2013] eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR
  • Muchai v Kinuthia
    (Environment and Land Appeal E017 of 2022) [2023] KEELC 19183 (KLR)
  • Benedeta Wanjiku Kimani v Changwon Cheboi & another
    [2013] eKLR
  • Benard Kanjau Ngamau v Comply Industries Ltd
    [2016] eKLR
  • Kenya Power & Lighting Co. Ltd v Clement Likobele Shikondi
    [2018] eKLR
  • Festus Ogada vs Hans Mollion
  • Goldsmith v Sperrings
    [1977] 1 WLR 478, 489
  • Total Extraction Ltd v Aircentric Ltd
    [2021] EW Misc 21 (CC)
  • Cyrus Mucebiu Irungu Vs Alexander Mugambi Miriti & 7 Others
    (2019) eKLR
  • Olympic Trading Company Ltd vs Said Mohamed and 4 others
    (2014)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over title and possession of land (Environment and Land Court Act); article 159(2)(d) of the Constitution invoked on procedural technicality

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, "Olympic Trading Company Limited v Mohamed; Basabra (Suing as the Administrator of the Estate of the Late Said Omar Mohamed Basabra) (Plaintiff); Olympic Trading Company Limited & 3 others (Defendant) (Environment & Land Case 259 of 2012) [2024] KEELC 5313 (KLR)", Case Analysis (2024). ELC Case of 2012 (Nairobi) - not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5313/eng@2024-07-11

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