Mbaabu v Iha & 3 others (Environment & Land Case 43 of 2018) [2024] KEELC 6421 (KLR)

The court examined both agreements against Section 3(3) of the Law of Contract Act (Cap 23) and Section 38 of the Land Act requiring writing, signatures of all parties and attestation. The agreements complied, making them binding. The 2nd Defendant breached the sale agreement by failing to complete conditions of sale and transfer, and the 1st Defendant breached her agreement with the 2nd Defendant. Applying the bona fide purchaser doctrine as revised in Mwangi James Njehia, since the 2nd Defendant bought from the 1st Defendant who had a valid title, the 2nd Defendant passed good title to the Plaintiff.

Relying on Katende v Haridar as reviewed in Mwangi James Njehia v Janetta Wanjiku Mwangi, the court noted the doctrine requires proof of valid (not merely apparent) vendor title. It found it not denied that the 2nd Defendant bought from the 1st Defendant who had valid title, so the 2nd Defendant passed good title to the Plaintiff. The court found the Plaintiff a valid bona fide purchaser and allowed prayers 1 and 2 of the Plaint.

Costs are at the discretion of the court; under the proviso to Section 27(1) of the Civil Procedure Act costs follow the event. Citing Harun Mutwiri, KUCFAW v Bidco and Hussein Muhumed Sirat, the court reaffirmed that the successful party is typically entitled to costs absent compelling reasons. Having established his case, the Plaintiff was awarded costs payable by all Defendants jointly and severally.