[2010] KEHC 1262 (KLR)
The court found that the 1st Defendant had already entered into a binding sale agreement with the Plaintiff for the same parcel of land, and the Plaintiff had paid the purchase price and registered a caution. The land was also subject to a charge by Kenya Commercial Bank, which was discharged using the Plaintiff's...
Source-derived case information.
- Citation
- [2010] KEHC 1262 (KLR)
- Parties
- Plaintiff: Michael Mubea Kamau; Defendant: Robert Wanyika Machina; Defendant: Beatrice Njeri Machina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2767 of 1994
- Procedural Posture
- Civil Case / Ruling on Objector's Application
- Outcome
- application dismissed with costs
- Legal Topics
- Fraudulent Conveyance, Land Sale Agreements, Land Control Board Consent, Registration of Cautions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Mubea Kamau
Plaintiff
Robert Wanyika Machina
Defendant
Beatrice Njeri Machina
Defendant
Procedural Posture
Civil Case / Ruling on Objector's Application
Legal Issues
- 1 Whether the objector acquired valid title to LR. No. Mutira/Kiaga/690 from the 1st Defendant.
- 2 Whether the 1st Defendant had capacity to sell the land to the objector given prior sale and encumbrances.
- 3 Whether the objector is entitled to a declaration of ownership of the land.
Ratio Decidendi
The court found that the 1st Defendant had already entered into a binding sale agreement with the Plaintiff for the same parcel of land, and the Plaintiff had paid the purchase price and registered a caution. The land was also subject to a charge by Kenya Commercial Bank, which was discharged using the Plaintiff's funds. When the 1st Defendant purported to sell the land to the objector, he no longer had the capacity to do so, as the land was already encumbered and subject to a prior agreement. Furthermore, the transaction with the objector lacked the requisite Land Control Board consent, rendering it void. The court concluded that the objector could not acquire valid title and was not...
Court Disposition
application dismissed with costs
Orders
- The application dated 5th September 2000 and filed on 6th September 2000 is dismissed with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2767 of 1994
MICHAEL MUBEA KAMAU ………………………………….PLAINTIFF
V E R S U S
ROBERT WANYIKA MACHINA ………………………..1ST DEFENDANT
BEATRICE NJERI MACHINA ………………………..2ND DEFENDANT
R U L I N G
The objector states that he bought land parcel LR. No. Mutira/Kiaga/690 from the 1st Defendant on7th September, 1998 vide Sale Agreement “FGK 1” and paid the purchase price. The land was, however, not transferred. The title remained in the name of the 1st Defendant. It is notable that the reason why the Plaintiff herein sued the 1st Defendant was that on 27th May, 1994 he had entered into agreement to buy the same parcel and paid KShs. 400,000/= for it. The land was then charged to Kenya Commercial Bank and the loan balance was KShs. 160,000/=. Part of the KShs. 400,000/= went to repay the loan and the title was discharged.
It is clear that when the 1st Defendant purported to enter into agreement with the objector he did not have the land except for the title. He had no capacity to sell the land a second time and was therefore entering into a fraudulent arrangement. He should refund the money he received from the objector.
When the objector came to court on6th September, 2000 he sought a declaration that the land belongs to him. The land was scheduled for auction at the instance of the Plaintiff to satisfy the decree entered against the 1st Defendant. The land still legally belonged to the 1st Defendant who had a decree to satisfy. The agreement entered into contemplated the consent of the Land Control Board. None was exhibited.
Further, the replying affidavit indicates that on9th June, 1994 the Plaintiff had registered a caution on the land. The caution was in place at the time of the alleged sale to the objector. The Plaintiff further swore that the bank had charged the land and also registered a caution thereon. These are encumbrances the objector ought to have borne in mind. In short, the land was not available.
I dismiss the application dated5th September, 2000 and filed on 6th September, 2000 with costs.
DATED AND DELIVERED ATNAIROBI
THIS 7TH DAY OF OCTOBER 2010
A.O. MUCHELULE
J U D G E