Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 14 of 2016 (Consolidated with Civil Appeal No. 32 of 2016)· [2020] KECA 734 (KLR)

Estate Sonrisa Ltd & another v Samuel Kamau Macharia & 2 others [2020] KECA 734 (KLR)

Court of Appeal
24 April 2020
William OukoW. OukoWKW. KaranjaSKS. ole Kantai
9,282 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal confirmed a Kenyan land buyer's title was fraudulent and that only the Land Registrar, not the court, must first fix disputed boundaries.

What this practically means

#

Executive summary

#
This consolidated appeal arose from a dispute over beach plot Galu/Kinondo/50 in Kwale, registered to Samuel Kamau Macharia since 1981, and the adjoining Kwale/Galu Kinondo/48 belonging to Estate Sonrisa Ltd. Ali Khan Ali Muses, the 2nd appellant, claimed a 2007 title to the suit land purchased from one Joseph Mwangi Nderitu for Kshs 9,000,000. The Environment and Land Court (Mukunya, J) declared Macharia the rightful owner, found the 2nd appellant's title fraudulent, and ordered beacons between the two parcels fixed by a surveyor according to the title acreages, with demolition of any encroaching structures within sixty days. On appeal, the Court of Appeal, acting as a first appellate court, re-assessed the evidence and affirmed the trial judge on both main questions. It held that the 2nd appellant's title was a forgery procured by fraud: Nderitu never appeared in the register, essential documents were missing, the identity card used belonged to a different person, and the transaction was concluded with reckless haste. Applying sections 27, 31, 32 and 143 of the Registered Land Act, the court held the 1st respondent's first-in-time title prevailed and the 2nd appellant substantially contributed to the fraud by his act, neglect or default. On the boundary issue, the court agreed the parcel measured 0.9 hectares, holding the contrary survey invalid for want of notice to adjoining owners. However, it varied the decree in two respects: the sixty-day demolition order was set aside as premature, the Registrar having first to determine the boundary dispute under the Land Registration Act with any challenge thereafter coming to court; and the order that the parties share survey costs was set aside, the Land Registrar and Government Surveyor being directed instead to determine the encroachment question. The appeals were dismissed with each party bearing their own costs.

Key legal issues

#
01

Whether the 2nd appellant's title to the suit land was valid

Holding

The title was a forgery procured by fraud; the purported vendor Joseph Mwangi Nderitu never appeared in the register as owner, and the 2nd appellant substantially contributed to the fraudulent registration by his act, neglect or default

Reasoning

The Land Registrar testified the 2nd appellant's title bore a forged signature, obsolete stationery, and lacked a transfer, land control consent, valuation requisition form, photographs and PIN details of the parties. The identity card number used by the vendor belonged to another person. The transaction was concluded with unexplained haste. Under sections 31, 32 and 143 of the Registered Land Act, the register confers priority and fraud vitiates title.

p. 6
02

Whether the trial Judge exceeded his jurisdiction in ordering that beacons be fixed and encroaching structures demolished within sixty days

Holding

The direction to fix boundaries was proper, but the sixty-day demolition order was premature because the Registrar must first determine the boundary dispute under the Land Registration Act, and the decision may thereafter be challenged in court

Reasoning

Sections 16 to 19 of the Land Registration Act vest in the Registrar, with notice to affected parties and the assistance of a surveyor, the power to ascertain and fix disputed boundaries. Sections 79(3A), 80, 86 and 91(9) allow challenge to the Registrar's decision in court. Ordering demolition before that determination pre-empted the statutory process, following Lawrence Kairu Nyambura v Symon Kabugi Kinyuru.

p. 9
03

Whether Kwale/Galu Kinondo/48 measures 0.9 or 1.9 hectares

Holding

On the evidence the parcel measures 0.9 hectares as reflected in the title deed and all related documents; the survey suggesting 1.9 hectares was conducted without notice to affected owners and the District Surveyor's letters were never produced in evidence

Reasoning

The title deed, certificate of lease, search certificate, planning brief, valuation and PDP all showed 0.9 hectares. A title deed is prima facie evidence under section 32(2) of the Registered Land Act. The alleged re-survey violated Division 3 of the Act requiring notice to adjoining owners, and the letters purporting to change the acreage were only marked for identification and never produced.

p. 9
04

Whether production of the parcel file without prior disclosure to the appellants was an ambush

Holding

It was not; the file was produced pursuant to a notice to produce and court summons, counsel cross-examined the Registrar on its contents, and the 1st respondent had expressly prayed for its production in the plaint

Reasoning

The court ordered the Land Registrar to avail the parcel file on the resumed hearing date, and all counsel cross-examined him on its contents. The 1st respondent's plaint sought an order that the Land Registrar produce the parcel file and all records pertaining to the suit land. The contents merely buttressed the Registrar's earlier testimony.

p. 5
05

Who should bear the cost of the survey to fix the boundaries

Holding

The order that the parties share survey costs was set aside because the discrepancies in plot sizes in the area are attributable to the state of the register, not to the parties

Reasoning

The court found general consensus that discrepancies on the sizes of plots in the area can only be attributed to the state of the register. Neither the 1st appellant nor the 1st respondent contributed to that situation, so neither should bear the survey cost. Instead, the Land Registrar and Government Surveyor, Kwale County, were directed to determine the encroachment question.

p. 10

Legal principles established

#
  • Only one title deed or certificate shall be issued in respect of each parcel of land, and a title deed is only prima facie evidence of the matters shown therein
  • Interests appearing in the register rank in priority according to the order in which the instruments leading to their registration were presented; a purchaser must check the register and verify the vendor's capacity as registered proprietor
  • A registered proprietor whose registration was obtained by fraud, or who substantially contributed to it by act, neglect or default, is not protected against rectification of the register
  • A court cannot pre-empt the statutory boundary-determination process; the Registrar must first determine the boundary dispute under the Land Registration Act, and any challenge to that determination comes to court thereafter
  • On a first appeal the Court of Appeal re-assesses the entire evidence and makes its own independent findings, being subject only to the constraint that it will not interfere with findings supported by evidence and the law

Court orders

#
  1. 1.Both consolidated appeals dismissed except to the extent stated in the judgment
  2. 2.The order that the survey fees be paid equally by the owners of Kwale/Galu Kinondo/48 and Galu/Kinondo/50 set aside
  3. 3.The Land Registrar, Kwale, together with the Government Surveyor, Kwale County, directed to determine whether Kwale/Galu Kinondo/48 has encroached upon the suit land
  4. 4.The order giving any party found to have encroached sixty days to demolish structures and vacate set aside as premature
  5. 5.Each party to bear their own costs of the appeal

Authorities

#

Legislation

  • Constitution of Kenya, 2010generally (referenced on land market)
  • Registered Land Act (repealed)section 27
  • Registered Land Act (repealed)sections 31 and 32(1)
  • Registered Land Act (repealed)section 32(2)
  • Registered Land Act (repealed)section 42(1)
  • Registered Land Act (repealed)section 110
  • Registered Land Act (repealed)section 143(1) and (2)
  • Registered Land Act (repealed)sections 21(2) and 21(4)
  • Registered Land Act (repealed)Third Schedule, Form R.L.1
  • Registered Land Act (repealed)Division 3 (Maps, Parcels and Boundaries)
  • Land Registration Act, 2012section 18
  • Land Registration Act, 2012section 26
  • Land Registration Act, 2012sections 16 to 19
  • Land Registration Act, 2012section 14(1)
  • Land Registration Act, 2012sections 79(3A), 80, 86 and 91(9)
  • Court of Appeal RulesRule 29(1)
  • Land Actreferenced in the order on fixing beacons

Cases cited (5)

  • Peters –V- Sunday Post Ltd
    (1958) EA 424
  • Selle and Another V. Associated Motor Boat Co. Ltd & Others
    (1968) EA 123
  • Mwangi V. Wambugu
    (1984) KLR 453
  • Arthi Highway Developers Limited
    Civil Appeal No. 246 of 2013
  • Lawrence Kairu Nyambura V. Symon Kabugi Kinyuru
    (2015) eKLR
On appeal from
Environment and Land Court, Mombasa
Mombasa ELC No. 30 of 2014
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules (Rule 29(1)); appeal against judgment and decree of the Environment and Land Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Estate Sonrisa Ltd & another v Samuel Kamau Macharia & 2 others [2020] KECA 734 (KLR)", Case Analysis (2020). Civil Appeal No. 14 of 2016 (Consolidated with Civil Appeal No. 32 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/734/eng@2020-04-24

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