Peter Karari Migwi & Another v Lydia Naserian (sued in her own capacity) & 5 Others
The bottom line
#The Environment and Land Court in Kajiado confirmed two engineers own a 100-acre plot, voided a rival's title as a forgery, and dismissed her counterclaim.
What this practically means
#Executive summary
#Key legal issues
#Ownership of LR Kajiado/Kisaju/1177 as between the plaintiffs and the 1st defendant
The plaintiffs are the lawful owners; the 1st defendant's claim is not lawful and her title documents are forgeries disowned by the registrars purported to have signed them
The court relied on the 1991 sale agreement complying with Section 3(3) of the Law of Contract Act, signed by buyer, seller and witnesses. Registrars Njeru and Munguti disowned the signatures on the 1st defendant's title and green card in uncontroverted witness statements. Njeru confirmed the plaintiffs' title as authentic. Plaintiffs proved payment of consideration by constructing a commercial building for the seller; the 1st defendant produced no evidence of payment.
Nature of the order against the 2nd defendant regarding registry records
The proper description of the order is simply an order, not a mandatory injunction, since there was no serious dispute with the Attorney General
Counsel for the Attorney General committed to abide by the court's directions, so no adversarial contest existed over rectification of the register. The court therefore declined to frame the relief as a mandatory injunction, which would require a higher threshold, and granted it as a simple restoration order.
Claim for trespass damages
Rejected; the plaintiffs did not prove any defendant was in occupation of the suit land
Despite the 1st defendant's witnesses testifying that she built structures and a circular water tank, the court was not convinced. In cross-examination it was put to the defence that they did not occupy the land, and even the plaintiffs' submissions did not seek such damages. Damages pleaded were not proved by cogent evidence.
1st defendant's counterclaim
Dismissed; the 1st defendant did not prove her case at all
She had no sale agreement, no evidence of payment of the purchase price, and it was recommended that she be charged with criminal offences of forgery and giving false information. The seller having sold to the plaintiffs in 1991, he could not lawfully sell the same land to the 1st defendant over ten years later.
Legal principles established
#- An agreement for the sale of land must be evidenced in writing unless the buyer is already in occupation at the time of the agreement
- An owner who has lawfully sold land cannot sell the same land again to another party
Court orders
#- 1.Declaration that the plaintiffs are the bona fide owners of LR Kajiado/Kisaju/1177 and that their title deed is genuine (prayer a)
- 2.Declaration that the documents held at Kajiado Land Registry showing the 1st defendant as proprietor are null and void (prayer b)
- 3.Order that the 2nd defendant cancel all records relating to the suit land not showing the plaintiffs as proprietors (prayer c)
- 4.Order requiring the 2nd defendant to restore the true records in respect of the suit parcel (prayer d)
- 5.Costs of the suit (prayer h)
- 6.Interest on prayers (d) and (e) (prayer i)
- 7.Judgment entered against the 1st, 2nd and 5th defendants only
- 8.1st defendant's counterclaim dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction over land disputes (Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Karari Migwi & Another v Lydia Naserian (sued in her own capacity) & 5 Others", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6927/eng@2024-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.