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ELCPartially AllowedNot stated in the judgment (Plaint dated 1st April 2014)

Muyundo v Musyimi & another (both Sued as the Administrators of the Estate of Stephen Musyimi Kimolo (deceased)) (Environment & Land Case 407 of 2014) [2025] KEELC 4966 (KLR)

Environment and Land Court
3 July 2025
9,828 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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A Nairobi land buyer won Kshs. 7.15 million from people who occupied his property for over a decade after he legally bought it from a bank.

What this practically means

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Executive summary

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The Plaintiff, a registered proprietor of Title Number Nairobi/Block 106/12, sued the Defendants - administrators of the estate of the late Stephen Musyimi Kimolo, the former registered proprietor - seeking vacant possession, eviction and mesne profits, having purchased the property from NIC Bank in exercise of its statutory power of sale by private treaty. By the time of trial he had obtained possession (September 2021) and pursued only mesne profits. The Defendants counterclaimed, seeking declarations that the consent in HCCC No. 97 of 2009 and the subsequent sale, transfer and registration were null and void, cancellation of the Plaintiff's Certificate of Lease and a permanent injunction, arguing inter alia that statutory notices were invalidly addressed to the deceased, that further facilities were not secured by valid charges, and that sale by private treaty breached Section 77 of the Registered Land Act. The court framed two issues: good title and mesne profits. It held the legality of the consent was sub judice in Civil Appeal No. E404 of 2021, but that as at institution of suit the consent had not been stayed or set aside; the court-adopted consent satisfied Section 79 RLA as sanction for variation permitting private treaty sale. The Plaintiff proved payment of the full purchase price; defects in the transfer (undated, unwitnessed) were insufficient to vitiate title, irregularities sounding in damages. Mesne profits, being special damages, were awarded at the pleaded Kshs. 55,000 per month for 130 months, totalling Kshs. 7,150,000, from registration on 29th November 2010 to possession in September 2021. The suit was allowed and the counterclaim dismissed, with costs to the Plaintiff.

Questions the Court framed

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

  1. 1.Whether the Plaintiff obtained good title over property title number Nairobi/Block 106/12 from NIC Bank
  2. 2.Whether the Plaintiff is entitled to mesne profits for the period between 2010 - 2021

Key legal issues

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01

Whether the Plaintiff obtained good title from NIC Bank

Holding

Yes. The sale by private treaty was pursuant to a consent adopted as a court order in HCCC No. 97 of 2009, satisfying Section 79 RLA; the Plaintiff fully paid the purchase price and the transfer irregularities did not vitiate the sale.

Reasoning

Although Section 77 RLA requires sale by public auction, Section 79 permits variation with court sanction. The consent of 12th June 2009 in HCCC No. 97 of 2009, adopted as a court order, authorised sale by private treaty in the event of a shortfall after realization of other securities. Consent orders bind parties unless obtained by fraud or collusion. The Plaintiff's offer letter, deposit cheque, mortgage loan and registered charge established the purchase; defects in the transfer copy (undated, unwitnessed) were insufficient to cancel title, the bank not denying the sale.

p. 16
02

Sub judice of the validity of the consent

Holding

The validity of the consent could not be determined because the issue is pending in Civil Appeal No. E404 of 2021.

Reasoning

The Defendants challenged the consent in HCCC No. 32 of 2010, which was dismissed, and appealed in Civil Appeal E404 of 2021. Under Section 6 of the Civil Procedure Act, a court may not try a matter directly and substantially in issue in a previously instituted proceeding pending in a court of competent jurisdiction. The Plaintiff was not party to the appeal, but the legal issues were identical, so the court declined to delve into the legality of the consent, which as at institution of suit had not been stayed or set aside.

p. 12
03

Whether the Plaintiff is entitled to mesne profits

Holding

Yes, at the pleaded rate of Kshs. 55,000 per month from 29th November 2010 to September 2021, totalling Kshs. 7,150,000.

Reasoning

Mesne profits are damages recoverable from a person in wrongful possession and must be specifically pleaded and proved. Registration as proprietor accrued on 29th November 2010 and possession was regained in September 2021, a period of 130 years' equivalent months of unlawful occupation by the Defendants. The pleaded rate of Kshs. 55,000 was supported by a Market Rental Survey showing rents of Kshs. 60,000-65,000, so the court awarded the pleaded lower figure over 130 months.

p. 17

Legal principles established

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  • A consent order adopted by the court satisfies the requirement under Section 79 of the Registered Land Act for court approval of a variation permitting sale by private treaty
  • Procedural irregularities in the exercise of a chargee's power of sale sound in damages, not cancellation of title
  • A claim for mesne profits, being in the nature of special damages, must be specifically pleaded and proved
  • A person in wrongful occupation of a registered proprietor's land is liable for mesne profits from the date of registration
  • A matter directly and substantially in issue in a pending appeal is sub judice and a court is precluded from determining it

Court orders

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  1. 1.The Defendants shall pay the Plaintiff mesne profits of Kshs. 7,150,000
  2. 2.The Defendants shall pay interest at court rates on the above amount from the date of judgment until payment in full at court
  3. 3.The Defendants shall pay the costs of the suit and the counter-claim

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over title to and occupation of land (Nairobi/Block 106/12); no specific constitutional provision invoked

Relief refused

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Vacant possession and order of eviction (prayers (a) and (b) of the Plaint)

The Plaintiff took possession of the suit property in September 2021 and abandoned these prayers

p. 11

Defendants' counterclaim (declarations of nullity of consent and sale, cancellation of the Certificate of Lease, permanent injunction)

The court found the counterclaim unmerited; the sale by private treaty was pursuant to a court-adopted consent and procedural irregularities did not vitiate the sale

p. 16

Costs

The Defendants shall pay the costs of the suit and the counter-claim to the Plaintiff

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.

The Defendants shall pay the Plaintiff mesne profits of Kshs. 7,150,000
final orders - mesne profits awarded
The Defendants shall pay interest at court rates on the above amount from the date of judgment until payment in full at court.
p. 17final orders - interest
The Defendants shall pay the costs of the suit and the counter-claim.
p. 17final orders - costs
this court finds that the chargee lawfully exercised its power of sale and that the Plaintiff lawfully purchased and obtained title to the suit property from the Bank.
p. 16validity of sale by private treaty under court-adopted consent
The Defendants' counterclaim is found to be unmerited and is hereby dismissed.
p. 16dismissal of counterclaim
if the sale was improper, or caused prejudice to the mortgagor, then in our view, the recourse lay in damages and not in cancellation of the Title Deed
p. 15remedy for irregularities in exercise of power of sale

Issues in the judgment

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minor

Contradictory dates given for the filing of the consent in HCCC No. 97 of 2009 - 12th June 2009 in one passage and 12th September 2009 in the Defence

minor

Inconsistent references to HCCC No. 97 of 2009 versus HCCC No. 97 of 2007 by PW1

minor

Judgment states transfer registered on 29th November 2010, but Defendants' submissions on lis pendens refer to registration on 29th November 2020

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, "Muyundo v Musyimi & another (both Sued as the Administrators of the Estate of Stephen Musyimi Kimolo (deceased)) (Environment & Land Case 407 of 2014) [2025] KEELC 4966 (KLR)", Case Analysis (2025). Not stated in the judgment (Plaint dated 1st April 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4966/eng@2025-07-03

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