Malamu v Gakuru & another
The bottom line
#Kenya's Court of Appeal cancelled a land buyer's title because the seller had no valid ownership, confirming that even registered titles can be lost if acquired illegally.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over an appeal filed out of time
The jurisdictional objection failed; time began running from the final orders of 19th December 2017, and the notice of appeal was filed within time.
The objection was raised as an afterthought rather than by a timely application to strike out. The earlier judgment of 30th June 2015 was incomplete until final orders were delivered after receipt of the NLC report, so limitation ran from the final orders and the Court was seized of jurisdiction.
Indefeasibility of the appellant's title
The appellant's title was not indefeasible; it was obtained illegally, unprocedurally and/or through a corrupt scheme and was properly cancelled.
Section 26 of the Land Registration Act protects title subject to two exceptions: fraud or misrepresentation to which the proprietor is a party, or acquisition illegally, unprocedurally or through a corrupt scheme. The transfer lacked clearance certificates, stamp duty payment evidence, and authentic documents, with registry officers disowning the documents.
Validity of title passed by the vendor
Samuel Muiruri Kariuki had no good title to pass; the property lawfully belonged to the deceased Colonel John K. Lebo.
On second appeal the Court does not re-analyse documents; from the evidence upheld by the ELC, the vendor was neither the registered owner nor a beneficiary of the deceased's estate, so he could pass no title to the appellant.
Contradictory final orders and status of the suit property
The learned Judge was entitled to adjust her final orders after the NLC report; reverting ownership to the position before the illegal transfer to the appellant was correct.
The 2015 judgment was not final until the final orders of 2017. The NLC report was not binding on the court. The Court found the respondents had received an informal transfer from the deceased before his death, so they were not intermeddlers, and equity required completion of the transfer.
Legal principles established
#- On a second appeal the Court of Appeal confines itself to matters of law only.
- A certificate of title acquired illegally, unprocedurally or through a corrupt scheme is not protected by section 26 of the Land Registration Act and may be cancelled.
- Where a first appellate judgment is not final, the judge retains power to adjust final orders after receiving a report ordered in the judgment.
- Equity regards as done that which ought to have been done, applicable to an incomplete informal transfer of land.
Court orders
#- 1.The Land Registrar ordered to facilitate the completion of the transfer of the suit property to the respondents pursuant to the judgment.
- 2.Save for the above orders, the appeal otherwise dismissed with each party bearing its own costs both in the Court of Appeal and in the court below.
- On appeal from
- Environment and Land Court of Kenya at Nyeri
- ELC Case No. 73 of 2014
- Jurisdiction invoked
- Second appeal to the Court of Appeal confined to matters of law, under section 72(1) of the Civil Procedure Act and the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malamu v Gakuru & another", Case Analysis (2024). Civil Appeal 31 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1867/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.