[2018] KEHC 8298 (KLR)
The court found that the defendants' purported purchase of portions of the suit land from the original owner was void for lack of land control board consent, as required for transactions involving agricultural land. The bank, as chargee, exercised its statutory power of sale after the chargor defaulted, and the...
Source-derived case information.
- Citation
- [2018] KEHC 8298 (KLR)
- Parties
- Plaintiff: Pius Wakoli Kising’ani; Defendant: William Mbanga Nyukuri; Defendant: Jotham Mundila Mufupi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 91 of 2010
- Procedural Posture
- Land Case / Judgment
- Outcome
- Plaintiff's claim allowed. Defendants to vacate within 30 days or be evicted. Injunction granted.
- Judges
- SN Mukunya
- Legal Topics
- Eviction, Permanent Injunction, Land Control Consent, Power of Sale, Bona Fide Purchaser
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Wakoli Kising’ani
Plaintiff
William Mbanga Nyukuri
Defendant
Jotham Mundila Mufupi
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to an order of eviction against the defendants from LR No. Kimilili/Kamukuywa/2267.
- 2 Whether the plaintiff is entitled to a permanent injunction restraining the defendants from interfering with his use and enjoyment of the suit land.
- 3 Whether the defendants have any valid interest in the suit land despite their occupation and alleged purchase.
Ratio Decidendi
The court found that the defendants' purported purchase of portions of the suit land from the original owner was void for lack of land control board consent, as required for transactions involving agricultural land. The bank, as chargee, exercised its statutory power of sale after the chargor defaulted, and the plaintiff lawfully purchased the land at a public auction. The registration of cautions by the defendants occurred after the bank's charge and did not affect the bank's overriding interest or the plaintiff's title as a bona fide purchaser. The defendants' continued occupation was therefore unlawful, and the plaintiff was entitled to eviction and a permanent injunction. Multiple...
Court Disposition
Plaintiff's claim allowed. Defendants to vacate within 30 days or be evicted. Injunction granted.
Orders
- Defendants to vacate LR No. Kimilili/Kamukuywa/2267 within 30 days from the date of judgment.
- If defendants fail to vacate within 30 days, plaintiff to evict them with the assistance of court broker and police.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
ELC. CASE NO. 91 OF 2010.
PIUS WAKOLI KISING’ANI…………………………....…..PLAINTIFF
VERSUS.
WILLIAM MBANGA NYUKURI………………….....1ST DEFENDANT
JOTHAM MUNDILA MUFUPI………………..........2ND DEFENDANT
JUDGMENT
[1]. The plaintiff claim in this case is for an order for eviction and permanent injunction baring the defendants from interfering with the plaintiffs enjoyment and use of LR No. Kimilili/Kamukuywa/2267.
[2]. The plaintiff state that he purchased 4 acres out of LR Kimilili/Kamukuywa/1426 in a Public Auction. That the defendants who were in occupation of the said land as tenants at the time of purchase refused to move out of the said land and instead filed a claim against the plaintiff in the Kamukuywa Land Disputes Tribunal which dismissed their claim. They then filed an appeal in the Provincial Appeals Lands Tribunal, the tribunal dismissed the claim. In the meantime Judgment of the tribunal had been adopted as the Judgment of the Court vide Kimilili RMCC Misc. Application No. 20 of 1977. The dismissal by the Western Land Appeals Tribunal was appealed against in the High Court Bungoma vide High Court Civil Case No. 66 of 1999. The said appeal was dismissed. As a result the plaintiff brings this case for eviction and for a permanent injunction against the defendants.
[3]. The defendant filed their defence and alleged that the suit land is still registered in the names of Joseph Werunga Natembeya and that it has not undergone subdivision. They asked for the plaintiffs case to be dismissed. The 2nd defendant wrote a statement and stated that he bought a portion of 2½ acres out of the suit land and the 2 acres were bought by the 2nd defendant. He stated that he paid Kshs.32,000/= and that the second defendant paid Kshs.40,000/=. He alleged that the deceased owner of the land had given to them possession and that they have occupied the same and effected developments thereon without any interference. They called witnesses who gave evidence who said they knew the defendants purchased the land from the owner Joseph Werunga Natembeya.
[4]. The issue for determination is whether the plaintiff is entitled to his claim for eviction and injunction against the defendants.
[5]. There is absolutely no dispute that the defendants entered the Land as purchasers on 5/4/88 and that they were allowed to occupy and use the land. A perusal of the copy of the register filed in Court shows that the land in question was registered on 24/11/86. That a charge over the land was registered on 23/12/86. On 28/6/1992 another charge was registered. Then 20/7/95 a caution in favour of Patrick Wanjala Natembeya was registered claiming interest as a beneficiary. On 23/10/95 a caution was registered in favour of Pius Kisiang’ani Wakoli claiming interest as a purchaser.
[6]. This land is agricultural land. The defendant appear not to have made any steps to have the land they claim to have purchased in their names. The charges by the bank came in when there was no inhibation on the title. The cautions were registered after the charges by the bank were registered. It would appear that the charger was unable to repay the loan and the bank exercised its power of sale. The plaintiffs then purchased a portion of the suit land from the resultant auction.
[7]. The sale of a portion of this land by the registered owner to the defendants was void for lack of land control consent since the land is agricultural. There is nothing to show that the chargee was ever aware of the interests of the defendants. The charge by the bank became an overriding interest of the suit land. The bank was well within its powers to realize the security to recover its charge.
[8]. I find that the plaintiff who purchased the suit land was bona fide. He is entitled to evict the defendants who have who have occupied this land Kimilili/Kamukuywa/2267 a subdivision of land parcel number Kimilili/Kamukuywa/1426.
[9]. The defendants have filed several suits, all of them have been dismissed by various courts. They shall now move out of the land parcel Kimilili/Kamukuywa/2267 within 30 days failing which they will be evicted by the plaintiff with the help of the Court broker and officers of the nearest police station. An injunction shall issue against them from entering and/or interfering with the plaintiffs land aforesaid. If they move out within 30 days from the date hereof, each party shall bear their own costs.
If they do not move out within that period, the plaintiffs shall have the costs of the suit and costs of eviction.
It is so ordered.
Judgment read in open Court in the presence of Counsel.
Dated at Bungoma this 22nd day of February, 2018.
S. MUKUNYA
JUDGE
In the presence of:
Joy: Court Assistant
Isye: For Mr. Khakula - Present
No appearance for Mr. Kraido