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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff obtained good title over property title number Nairobi/Block 106/12 from NIC Bank
- 2.Whether the Plaintiff is entitled to mesne profits for the period between 2010 - 2021
Key legal issues
#Whether the Plaintiff obtained good title from NIC Bank
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.
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.
Sub judice of the validity of the consent
The validity of the consent could not be determined because the issue is pending in Civil Appeal No. E404 of 2021.
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.
Whether the Plaintiff is entitled to mesne profits
Yes, at the pleaded rate of Kshs. 55,000 per month from 29th November 2010 to September 2021, totalling Kshs. 7,150,000.
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.
Legal principles established
#- 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
#- 1.The Defendants shall pay the Plaintiff mesne profits of Kshs. 7,150,000
- 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.The Defendants shall pay the costs of the suit and the counter-claim
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 title to and occupation of land (Nairobi/Block 106/12); no specific constitutional provision invoked
Relief refused
#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
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
Costs
The Defendants shall pay the costs of the suit and the counter-claim to the Plaintiff
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.
The Defendants shall pay the Plaintiff mesne profits of Kshs. 7,150,000
The Defendants shall pay interest at court rates on the above amount from the date of judgment until payment in full at court.
The Defendants shall pay the costs of the suit and the counter-claim.
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.
The Defendants' counterclaim is found to be unmerited and is hereby dismissed.
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
Issues in the judgment
#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
Inconsistent references to HCCC No. 97 of 2009 versus HCCC No. 97 of 2007 by PW1
Judgment states transfer registered on 29th November 2010, but Defendants' submissions on lis pendens refer to registration on 29th November 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.