Charles Odhiambo Kasera & another v Salome Nafula Richard [2018] KEELC 4007 (KLR)
The bottom line
#Buyers of jointly owned land in Kenya lost their eviction case because they skipped basic checks, including land control board consent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiffs have made out any claim for eviction of the defendant from land parcel E. Bukusu/S. Kanduyi/4147
Key legal issues
#Whether title passed to the plaintiffs through the sale agreement of 17/11/2016
No title passed; the purported sale of jointly owned land by one surviving proprietor where the deceased co-owner's estate had not been administered was illegal, and the sale was void for want of land control consent
Jamin Soita Walusekhe died in 2007 and no letters of administration were ever taken out. His joint share could not be sold without an administrator. Further, no Land Control Board consent was obtained, rendering the sale void under Section 6 of the Land Control Act, Cap 302. The caution was also removed irregularly after the lodger's death.
Whether the plaintiffs were bona fide purchasers for value without notice
No; they failed to exercise due diligence despite living nearby, visiting the land, and knowing it was occupied and that a co-owner was dead
The plaintiff admitted he lived not far away, had visited the land, saw houses and occupants, and knew one co-owner was long dead. Applying the Flemish Investments due-diligence standard, such inspection would have revealed the legal dangers in the purchase, defeating any bona fide purchaser claim.
Whether the defendants proved fraud and illegality in the transfer
Yes; the court was satisfied the transfer was irregular, illegal and unlawful, including irregular removal of the deceased lodger's caution by the vendors in cahoots with land office officers
The caution lodged by Namubuya Nekoye Grace in 1997 was removed in December 2016, over two years after her death and 12 days after the sale agreement. The registrar did not indicate removal under his statutory powers under the repealed Cap 300, so the court inferred removal by the vendors with corrupt land office officers to satisfy clause 8 of the agreement.
Legal principles established
#- A bona fide purchaser must exercise due diligence, including inspecting the property to ascertain occupation and developments before purchase
- Where land is jointly owned and one co-owner has died without an administrator being appointed, no valid sale of the deceased's joint share can occur and no land control consent can be lawfully obtained
- A sale of land controlled under the Land Control Act without land control board consent is void and no title passes
Court orders
#- 1.The plaintiffs' suit is dismissed
- 2.Costs of the suit awarded to the defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the judgment)
Relief refused
#Immediate eviction of the defendant from the suit land
The plaintiffs' registration was irregular, illegal and unlawful; no title passed to them so they had no proprietary rights to found an eviction
Costs
The plaintiffs' suit is dismissed with costs to the defendant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A bona fide purchaser exercising due diligence would be expected to inspect the property he is buying, to ascertain its physical location, persons, if any, in occupation, developments, buildings and fixtures thereon among others
In any case, no land control consent was shown to have been obtained. That sale was therefore void under Sec. 6 of the land control act Cap 302.
Consequently they have no power to evict the defendant at all. The plaintiffs suit is dismissed with costs to the defendant.
I am satisfied that the registration of the land in the names of the plaintiffs is irregular illegal and unlawful.
Issues in the judgment
#The judgment gives two conflicting dates of death for Jamin Soita Walusekhe
Conflicting date of death stated later in the judgment
The case title and case number of the suit are not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Odhiambo Kasera & another v Salome Nafula Richard [2018] KEELC 4007 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4007/eng@2018-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.