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ELCPartially AllowedCase number not stated in the judgment· [2014] KEELC 343 (KLR)

Sai Office Supplies Limited v Rosemary Alivista Luseno & Another [2014] KEELC 343 (KLR)

High Court of Kenya at Nairobi
10 June 2014
4,636 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's High Court cancelled a fraudulently issued duplicate land title, confirming the Lands Ministry's responsibility, but the owner recovered only Kshs 100,000 damages for lack of evidence of loss.

What this practically means

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Executive summary

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Sai Office Suppliers Limited purchased L.R No. 3734/794 (I.R No. 22456) from Cowan Holdings Limited for Kshs 40,000,000/= in 2008, paid stamp duty, and had the transfer registered on 18th December 2008, later charging the property to I&M Bank. In 2012 it discovered that a second title to the same property had been issued to the 1st Defendant, Rosemary Alivitsa Luseno, on 8th January 2009, together with a purported transfer it had never executed. The 1st Defendant never entered appearance and interlocutory judgment was entered against her; the 2nd Defendant (the Attorney General, for the Commissioner of Lands and Registrar of Titles) filed a defence but called no evidence, contending that any forgery did not emanate from its office and blaming the City Council of Nairobi and the Plaintiff's own lack of diligence. The court framed three issues: fraud and negligence, entitlement to reliefs, and costs. Relying on the strict standard of proof for fraud, it held that the Plaintiff had proved ownership and that the existence of a second title with no supporting allocation documents was itself evidence of forgery and negligence by Lands Ministry officials and the 1st Defendant. The court declared the Plaintiff the lawful owner, declared the purported transfer illegal, null and void, ordered delivery up and cancellation of the 1st Defendant's title, issued a permanent injunction against her, and awarded nominal general damages of Kshs 100,000/= jointly and severally, exemplary and larger general damages being refused for want of strict proof of loss. Both Defendants were ordered to bear the costs jointly and severally.

Key legal issues

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01

Whether the title issued to the 1st Defendant was fraudulently and negligently issued

Holding

Yes - the Plaintiff proved its ownership and entitlement, and the issuance of a second title without any supporting processes amounted to fraud and negligence by both Defendants

Reasoning

The Plaintiff traced the entire chain from sale agreement, payment of Kshs 40,000,000/=, execution of transfer, to registration on 18th December 2008. No evidence was led of any allocation or processes leading to the 1st Defendant's title of 8th January 2009, and the 2nd Defendant effectively admitted the title was likely a forgery. The existence of two titles for one property was itself evidence of forgery and negligence by Lands Ministry officials. Applying the strict standard of proof for fraud, the court found both Defendants privy to the fraudulent and negligent issuance.

p. 5
02

Whether the Plaintiff was entitled to the reliefs sought

Holding

Partly - declarations, cancellation of the forged title, and injunction were granted; exemplary and general damages beyond nominal damages were refused

Reasoning

The Plaintiff's ownership being uncontested, it was entitled to declarations and consequential orders including delivery up and cancellation of the forged title and a permanent injunction. However, no evidence of special damage from the two-month halt to construction was produced, defeating exemplary damages, and no evidence of diminution in value supported more than nominal general damages, assessed at Kshs 100,000/=.

p. 6
03

Who should bear the costs

Holding

Both Defendants, jointly and severally

Reasoning

Under section 27(1) of the Civil Procedure Act costs follow the event. The Plaintiff succeeded on the substantive claims after the Defendants failed to controvert its evidence, and the Plaintiff had given prior notice of its claim through demand letters, so the Defendants were ordered to bear the costs jointly and severally.

p. 7

Legal principles established

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  • Allegations of fraud must be strictly proved to a standard higher than a balance of probabilities but below proof beyond reasonable doubt, and the burden lies on the party alleging fraud
  • The Government, through the Ministry of Lands, bears full responsibility for the accuracy and authenticity of titles issued, which underpins statutory indemnity provisions
  • Where an issuance of title or transfer does not follow laid-down legal procedures it is null and void

Court orders

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  1. 1.The Plaintiff, Sai Office Suppliers Limited, declared the lawful and legitimate owner and proprietor of L.R No. 3734/794 (I.R No. 22456)
  2. 2.The purported transfer of the property to the 1st Defendant declared illegal, null and void
  3. 3.The 1st Defendant ordered to forthwith deliver up the title issued to her for cancellation
  4. 4.The Land Registrar, Nairobi County ordered to forthwith cancel the title issued to the 1st Defendant registered on 8th January 2009 and any consequential entries
  5. 5.A permanent injunction restraining the 1st Defendant, her agents, servants and/or employees from entering upon, disposing of, alienating, encumbering, charging, interfering with, transferring or otherwise dealing with the suit property
  6. 6.Nominal general damages of Kshs 100,000/= awarded against both the 1st and 2nd Defendants jointly and severally
  7. 7.The 1st and 2nd Defendants to jointly and severally bear the costs of the suit

Authorities

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Legislation

  • Government Proceedings Actsection 13A
  • Registered Land Act (repealed)section 144(1)
  • Registration of Titles Act (repealed)section 24
  • Land Registration Actsections 81-84
  • Civil Procedure Act (Cap. 21)section 27(1)
  • Constitution of KenyaArticle 40

Cases cited (10)

  • James Gichure Kionga v. Patrick Ngotho Muraguri
    HCCC No. 180 of 1999
  • James Kasyula Mutua v. Fontana Enterprises Limited
    HCCC No. 462 of 2001
  • John Ng’ang’a Gathegi v. Chief Land Registrar & Another
    HCCC No. 1647 of 2002
  • Joel Kiprono Koskei v. Jane Koskei
    HCCC No. 96 of 2004
  • Philomena Warigia Waweru v. Patrick Mbugua & 4 others
    HCCC No. 269 of 2000
  • Alberta Mae Gacie v. The Attorney General & 4 Others
    HCCC No. 522 of 2000
  • Mutsonga –vs- Nyati
    1984 (KLR) 425
  • Koinange & 13 Others vs. Koinange
    (1986) KLR 23
  • Chauhan v. Omagwa
    (1985) KLR 656
  • Hahn -vs- Singh
    (1985) KLR 716
Jurisdiction invoked
Original civil jurisdiction of the High Court in a land dispute; Article 40 of the Constitution invoked regarding proprietary rights

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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

Cite this brief

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Cite this brief

Caselaw, "Sai Office Supplies Limited v Rosemary Alivista Luseno & Another [2014] KEELC 343 (KLR)", Case Analysis (2014). Case number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/343/eng@2014-06-10

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