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ELCPartially AllowedELC CIV. CASE NO. 388 OF 2010

Pauline Mutee Makumu & another v Ursula Kreszenntia & 3 others [2019] KEELC 102 (KLR)

Environment and Land Court
7 October 2019
10,013 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~40 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that property sold while a court case was pending was sold illegally, awarding buyers Kshs.53 million for demolished buildings.

What this practically means

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Executive summary

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The plaintiffs sued the 1st and 2nd defendants over a Deed of Agreement dated 27th October 2003 under which they were to acquire, upon payment of Kshs.6.5 million each, the guest house business on plot 2444/1/MN Shanzu and registration of the plot in their joint names. They claimed the defendants unlawfully terminated the agreement, sold and transferred the plot to the 3rd defendant while the suit was pending, and that the 3rd defendant, through the 4th defendant, unlawfully evicted and demolished their structures in July 2012 pursuant to orders in CMCC 1141 of 2012. The 1st and 2nd defendants counterclaimed seeking a declaration of ownership and accounts, alleging misrepresentation and fraud. The court framed seven questions. It held that the deed transferred business interests absolutely and that payment of the Kshs.6.5 million was uncontroverted, as the 1st and 2nd defendants adduced no evidence. Relying on the doctrine of lis pendens and a subsisting injunction/status quo order, the court held the 1st and 2nd defendants had no capacity to sell, that the sale to the 3rd defendant was illegal, unlawful and fraudulent, and that the 3rd defendant lost the protection of the innocent purchaser doctrine. It found the 4th defendant properly joined but reserved judgment on liability. Exercising original jurisdiction, the court held the magistrates' court lacked jurisdiction under Section 2 of cap 281 and Section 5 of the Magistrates' Court Act, rendering the eviction orders null and void ab initio. Holding the 3rd defendant solely responsible for the demolitions, and relying on the unrebutted valuation of PW3, it awarded Kshs.53 million for demolished improvements, entered judgment against the 1st, 2nd and 3rd defendants jointly and severally, and awarded costs to the plaintiffs. The judgment was signed by A. Omollo J on 23rd September 2019 at Busia and delivered at Mombasa by C. Yano J on 7th October 2019.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.What rights were conferred upon the plaintiffs by the Deed of Agreement dated 27th October 2003?
  2. 2.Did the 1st and 2nd defendants have capacity to transfer plot No. 2444/1/MN to the 3rd defendant?
  3. 3.Was the 3rd defendant a bonafide purchaser for value without notice of the complaints by the plaintiffs?
  4. 4.Whether the 4th defendant was properly joined to this suit
  5. 5.Whether this court can determine the question of jurisdiction of the Magistrate's court in granting eviction orders in CMCC 1141 of 2012
  6. 6.Did the plaintiffs suffer damages as a result of the evictions and demolitions for which they should be compensated?
  7. 7.Who bears the costs of the suit?

Key legal issues

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01

Effect of the Deed of Agreement dated 27th October 2003

Holding

The deed transferred the business interests absolutely to the plaintiffs and, upon payment of Kshs.6.5 million, the plaintiffs were to be registered as joint owners of the plot; the plaintiffs proved payment of the consideration, which was uncontroverted

Reasoning

The court read clauses 1, 2 and 4 of the deed: the business interests passed absolutely and clause 4 evidenced a sale of the 1st and 2nd defendants' interest in the plot for Kshs.6.5 million. The plaintiffs' evidence on payment from compensation proceeds and an RTGS deposit of Kshs.12 million plus cash of Kshs.2 million was not challenged because the 1st and 2nd defendants adduced no evidence, so payment of the purchase price stood uncontroverted.

p. 8
02

Capacity of the 1st and 2nd defendants to transfer the suit property pending suit

Holding

The 1st and 2nd defendants had no capacity to sell and transfer the suit property to the 3rd defendant, the sale being illegal, unlawful and fraudulent, owing to lis pendens and the subsisting order of injunction/status quo

Reasoning

An order of maintenance of status quo was made on 4/11/2010 in the presence of the 1st and 2nd defendants' counsel, and the defendants themselves acknowledged the injunction in their application of 27th November 2010. The doctrine of lis pendens and the injunction barred disposal of the property pending determination; the sale of 23/3/2012 and transfer of 26/4/2012 were therefore invalid and intended to defeat the suit.

p. 9
03

Whether the 3rd defendant was a bonafide purchaser for value without notice

Holding

The 3rd defendant lost the right to plead innocent purchaser for value without notice

Reasoning

The 3rd defendant was aware of the Deed of Agreement, was represented by an advocate in the transaction who should have explained its meaning, and due diligence would have revealed the termination letter and the plaintiffs' relationship with the property. His claim of innocence could only lie against the 1st and 2nd defendants for non-disclosure.

p. 9
04

Jurisdiction of the magistrates' court in CMCC 1141 of 2012 and this court's power to determine it

Holding

This court, exercising original jurisdiction, had power to determine the magistrates' court's jurisdiction; the magistrates' court lacked jurisdiction and its orders were null and void ab initio

Reasoning

The jurisdictional issue was raised as part of the illegality of the eviction within the plaint, not as an appeal or review, equating to a collateral challenge akin to judicial review, distinguishing the Ann Waiguru case. The title was registered under the Registration of Titles Act, which defines 'court' as the High Court, and the pecuniary value exceeded the magistrates' court limit under Section 5 of the Magistrates' Court Act.

p. 10
05

Liability and damages for the eviction and demolition

Holding

The 3rd defendant was solely liable for the demolitions and the plaintiffs were entitled to compensation of Kshs.53 million per the unrebutted valuation

Reasoning

The court order in CMCC 1141 of 2012 was for eviction only, not demolition; the 3rd defendant obtained a council demolition licence without legal basis and carried out the demolitions with his own employees, not a court bailiff. The plaintiffs' valuation through PW3 was uncontradicted, entitling them to Kshs.53 million for the demolished improvements.

p. 10
06

Limitation of actions

Holding

The claim was not statute barred; time was not of the essence of the agreement, and the land claim fell within the twelve-year limitation period while the claim for demolished developments arose during the pendency of the suit

Reasoning

The deed set no time limit for performance, so time could only run from the default, marked by the termination letter of 13th October 2010. In any event, a claim for land is valid within twelve years under the Limitation of Actions Act, and the claim for the developments demolished in 2012 arose after the suit was filed.

p. 8
07

Joinder of the 4th defendant

Holding

The 4th defendant, though an agent of a disclosed principal, was properly joined to the suit

Reasoning

The joinder foreclosed any argument by the 3rd defendant that he was not involved in the service and execution of the court process, avoiding open-ended blame over responsibility for the plaintiffs' loss, consistent with Order 1 rule 7 of the Civil Procedure Rules.

p. 9

Legal principles established

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  • The doctrine of lis pendens overrides Section 23 of the Registration of Titles Act and prohibits a party from giving to others pending the litigation rights to the property in dispute
  • A third party's claim of innocence cannot cure the illegality of a vendor who disposes of property contrary to a subsisting order of injunction or lis pendens
  • A court lacks jurisdiction where the defining statute defines 'court' as the High Court and the pecuniary value exceeds the magistrates' court limit, rendering such orders null and void ab initio
  • A claim for land under the Limitation of Actions Act must be brought within twelve years from when the right accrued

Court orders

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  1. 1.Judgment entered for the plaintiffs as prayed in the amended plaint as against the 1st, 2nd and 3rd defendants jointly and severally
  2. 2.Compensation for the demolished improvements awarded at Kshs.53 million as per the valuation report of PW3
  3. 3.Costs of the suit awarded to the plaintiffs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land and environment disputes); jurisdiction to examine validity of subordinate court orders invoked in original proceedings

Relief refused

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Liability and compensation as against the 4th defendant (Oscar Juma)

The court found the 4th defendant properly joined but judgment was entered only against the 1st, 2nd and 3rd defendants

p. 10

Portion of damages claimed beyond the assessed value of demolished structures

Damages limited to the unrebutted valuation report figure of Kshs.53 million rather than the higher figures asserted

p. 10

Costs

The costs of the suit are awarded to the plaintiffs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In summary, I enter judgment for the plaintiffs as prayed in the amended plaint as against the 1 st, 2nd and 3rd defendants jointly and severally. The costs of the suit is also awarded to the plaintiffs.
p. 10Final orders and disposition
Given that the valuation presented by plaintiffs through the evidence of Mr. Paul Wambua (PW3) has not been contradicted/controverted by any other valuation report, I find that the plaintiffs are entitled to compensation for the demolished improvements at Kshs.53 million as stated in that report (as prayed in paragraph (h) of the plaint).
p. 10Damages for demolished improvements
Therefore the magistrate's court lacked jurisdiction to entertain the claim filed before it as same contravened both Section 2 cap 281 and Section 5 of the Magistrates' Court Act. The orders issued in the case CMCC 1142 OF 2012 were thus null and void ab inito for want of jurisdiction.
p. 10Nullity of subordinate court orders for want of jurisdiction
It therefore overrides Section 23 of the Registration of Titles Act and prohibits a party from giving to others pending the litigation rights to the property in dispute so as to prejudice the other.
p. 9Doctrine of lis pendens versus registered title
I find the agreement entered into between the 1 st & 2nd defendants on one part and the 3rd defendant on the second part was illegal, unlawful and fraudulent intended to defeat this suit and/or the interests of the plaintiffs.
p. 9Fraudulent sale to defeat pending suit
The averment that the 1st & 2nd defendants were fully paid the sum of Kshs.6.5 million has thus not been controverted.
p. 8Uncontroverted evidence on payment of purchase price

Issues in the judgment

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minor

The judgment refers inconsistently to the case number of the compensation suit, variously HCCC 202 of 2005 and HCC 102 of 2006/HCC 205 of 2005

minor

The judgment cites the lower court file as CMCC 1141 of 2012 in most passages but as CMCC 1142 OF 2012 when nullifying the orders

minor

The judgment refers to a lis pendens quotation attributed to Section 52 of TPA within a Kenyan law context via a cited Court of Appeal decision

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Pauline Mutee Makumu & another v Ursula Kreszenntia & 3 others [2019] KEELC 102 (KLR)", Case Analysis (2019). ELC CIV. CASE NO. 388 OF 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/102/eng@2019-10-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.