Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 143 of 2017

Maikuma Wekesa Buchunju (Suing for and on Behalf of the Estate of the Late Buchunju Kapchanga - Deceased) v Donald Wekesa Muyundo & 7 others

Environment and Land Court of Kenya
5 October 2023
8,486 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

#

A family lost its 40-year fight to reclaim auctioned land in Bungoma because the claim was filed decades too late.

What this practically means

#

Executive summary

#
The plaintiff, administrator of the estate of Buchunju Kapchanga, sued to nullify the transfer of land parcel Ndivisi/Ndivisi/177 from the deceased to the 3rd defendant (1981) and then to the 1st defendant (2016), seeking declarations, cancellation of titles and an injunction. The 1st defendant counterclaimed for vacant possession, eviction, mesne profits and damages, having bought the land at a public auction on 4th December 2015 conducted by the 4th defendant at the instance of the 5th defendant, and charged it to the 2nd defendant. The 6th defendant traced its own 1976 charge and 1980 foreclosure. The court framed four issues: limitation, bona fide purchaser status, the counterclaim, and costs. It held the suit statute barred under Section 7 of the Limitation of Actions Act, the deceased having known of the sale and transfer between 1976 and 1985, and held the Section 26 fraud proviso unavailable because the property had passed to purchasers for value without notice of fraud. The 1st defendant was found an innocent purchaser for value without notice, protected under Sections 24, 25 and 26 of the Land Registration Act. Eviction was ordered within ninety days and a declaration of bona fide purchase issued, but mesne profits and damages were refused for want of proof. The plaintiff's suit was dismissed with costs to the defendants, and the 1st defendant was awarded costs of the suit and counterclaim.

Questions the Court framed

#

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

  1. 1.Whether this suit is time barred
  2. 2.Whether the 1st defendant is an innocent purchaser for value
  3. 3.Whether the 1st defendant is entitled to the orders sought in the counterclaim (including eviction, mesne profits and damages)
  4. 4.Who should bear the costs of the suit

Key legal issues

#
01

Whether the suit is time barred

Holding

The suit was statute barred; the deceased knew of the sale and transfer between 1976 and 1985, so time ran from then, and the Section 26 proviso did not assist because the property passed to purchasers for value without notice of fraud

Reasoning

The court traced the cause of action to the 1981 transfer and the 1985 letter to the deceased's advocates, plus the 1983 case by Khaemba and the 2015 auction notice received by the family. Section 7 prescribes twelve years for land recovery. Section 26's proviso bars its use to set aside transactions affecting property purchased for valuable consideration by persons not party to the fraud and without notice of it.

02

Whether the 1st defendant is an innocent purchaser for value

Holding

Yes; he bought at a duly advertised public auction, was issued a certificate of title, and no notice of irregularity was proved against him

Reasoning

Applying the bona fide purchaser elements from Lawrence Mukiri and Katende, and the Court of Appeal principle that a purchaser at a properly advertised auction need not inquire into the mortgagee's right to sell, the court found the 1st defendant relied on the newspaper advertisement, participated in the auction and had no notice of any irregular exercise of the statutory power of sale. Fraud allegations were not proved to the heightened standard.

03

Whether the 1st defendant is entitled to eviction and vacant possession

Holding

Yes; as registered absolute proprietor under Sections 24, 25 and 26 of the Land Registration Act, and the plaintiff's rights were extinguished on the valid sale, eviction was ordered

Reasoning

The court invoked Section 26(1) of the Land Registration Act on indefeasibility, Section 24(a) on vesting of absolute ownership, and authority that the mortgagor's equity of redemption is extinguished on completion of a valid sale. Finding no illegality in the auction, it held the property should vest in the 1st defendant and ordered eviction within ninety days.

04

Whether the 1st defendant is entitled to mesne profits and damages

Holding

No; mesne profits were refused for want of proof

Reasoning

Although mesne profits were pleaded, the 1st defendant adduced no evidence quantifying the loss or the extent of the occupation. Relying on Peter Mwangi Mbuthia v Samow Edin Osman, the court held a claimant must place material before the court showing how the amount claimed was computed; absent that, the claim fails.

p. 15

Legal principles established

#
  • Limitation goes to jurisdiction; a statute-barred claim cannot be entertained
  • Fraud must be specifically pleaded and proved to a standard higher than the ordinary civil standard
  • A purchaser at a duly advertised public auction owes no duty to inquire into the mortgagee's right to sell
  • The equity of redemption is lost on completion of a valid agreement for sale following exercise of statutory power of sale
  • A registered proprietor's certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or illegality to which he is party

Court orders

#
  1. 1.The plaintiff's claim against the defendants is dismissed with costs
  2. 2.A declaration that the 1st Defendant is the bona fide purchaser for value of all that parcel of land known as Ndivisi/Ndivisi/177
  3. 3.An eviction order issued against the plaintiff within ninety (90) days of the judgment
  4. 4.The defendants shall have the costs of the suit and the 1st defendant shall have the costs of the suit as well as the counterclaim

The bench

#

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 13(1), (2), (3) and 19 of the Environment and Land Court Act, No. 19 of 2011 and Section 101 of the Land Registration Act

Relief refused

#

Declaration that the transactions transferring the suit land were null and void ab initio; cancellation of the 1st and 3rd defendants' titles; permanent injunction

Suit was statute barred under Section 7 of the Limitation of Actions Act and the plaintiff could not rely on Section 26 because subsequent purchasers were for value without notice of fraud; fraud not proved to the required standard

p. 11

Mesne profits of Kshs.100,000/= per month sought in the 1st defendant's counterclaim

No evidence furnished on the extent of encroachment or loss suffered; burden of proof not discharged

General damages for loss suffered sought in the counterclaim

Not awarded; no evidence of loss was adduced

Costs

The defendants shall have the costs of the suit and the 1st defendant shall have the costs of the suit as well as the counterclaim

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.

I therefore dismiss the plaintiff's case against all the defendants and enter judgment for the 1st defendant on his counterclaim against the plaintiff
disposition
An eviction order is hereby issued against the plaintiff within ninety (90) days of this judgment.
p. 15final orders - eviction
A declaration is hereby issued that the 1st Defendant is the bona fide purchaser for value of all that parcel of land known as Ndivisi/Ndivisi/177.
p. 15final orders - declaration
It follows therefore that by the time the Plaintiff filed this suit, the claim was statute barred.
p. 11limitation
the plaintiff cannot seek shelter under the proviso of Section 26 of the Limitation of Actions Act.
limitation - fraud proviso
In the instant case, it is my finding that the 1st defendant was an innocent purchaser for value without notice of any fraud or impropriety.
bona fide purchaser
The defendants shall have the costs of this suit and the 1st defendant shall have the costs of the suit as well as the counterclaim
p. 15costs

Issues in the judgment

#
minor

Judgment refers to the 3rd defendant as innocent purchaser when analysing the 1st defendant's bona fides

minor

Plaint date given inconsistently as 17th October 2017 and 3rd November 2017

minor

Purchase price figure internally garbled

minor

Paragraph 75 attributes the auction purchaser's conduct to 'the plaintiffs', conflating parties

minor

Final orders skip letter (d) and duplicate costs wording in order (e)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Maikuma Wekesa Buchunju (Suing for and on Behalf of the Estate of the Late Buchunju Kapchanga - Deceased) v Donald Wekesa Muyundo & 7 others", Case Analysis (2023). Environment & Land Case 143 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20567/eng@2023-10-05

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