James Kironco Ituma Rwito v Mary Kingori & 2 others [2020] KEELC 3543 (KLR)
- Court
- Environment & Land Court
- Case number
- 3543
- Citation
- [2020] KEELC 3543 (KLR)
- Decided
- 10 February 2020
The court finds that the Plaintiff and the 1st Defendant had no capacity to transact on a property that was charged to a bank without the consent of the chargor, thus the 1995 sale agreement is invalid.
Facts
The Plaintiff, James Kironco Ituma Rwito, filed a suit against the 1st Defendant, Mary Kingori, and the 2nd Defendant, National Bank of Kenya, claiming ownership of land in Meru Municipality. The 1st Defendant filed an amended defense and counterclaim, and the 3rd Defendant filed a further amended defense and counterclaim.
Issues
- Validity of the 1995 sale agreement between the Plaintiff and the 1st Defendant
- Whether the Plaintiff's suit is time barred
- Whether the Plaintiff has established a case against the 1st Respondent
- Whether the Plaintiff has established fraud allegations against the Defendants
- Whether the 3rd Defendant's counterclaim is merited
Reasoning
The agreement for sale was drawn when the property was already charged to the 2nd defendant, National Bank of Kenya. The agreement required the vendor to seek consent from the bank to subdivide the land. Since the vendor failed to obtain such consent, the agreement is invalid.
Outcome
The court dismissed the Plaintiff's claims and the 1st Defendant's counterclaim.
Orders
- Cancellation of the transfer in favor of the 3rd Defendant and rectification of the register in favor of the Plaintiff
- Permanent and mandatory injunction restraining the defendants from interfering with the quite possession of the suit premises by the plaintiff
- Perpetual and mandatory injunction compelling the 3rd Defendant to remove themselves from the suit premises
- Injunction restraining the defendants from dealing, transferring, charging, disposing of, or interfering with the suit premises
- Declaration that the defendants' actions are illegal
- General and punitive damages against the 3rd defendant for illegal eviction
- Interest on (a) and (f) above from 26th March, 2009
Remedies
- Cancellation of the transfer
- Permanent and mandatory injunction
- Perpetual and mandatory injunction
- Injunction restraining the defendants from interfering with the suit premises
- Declaration that the defendants' actions are illegal
- General and punitive damages
- Interest on (a) and (f) above
Authorities cited
Legislation (1)
- Law of Consent Act
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