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ELCAllowedCivil Case No 61 of 2013· [2014] KEELC 398 (KLR)

Taib Ali Taib v Ahmed Fuad Amir & 6 others [2014] KEELC 398 (KLR)

Environment and Land Court
9 May 2014
OAO.A. Angote
2,114 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled fraudulently obtained land titles, ruling that a void transfer passes nothing to later buyers.

What this practically means

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Executive summary

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The Plaintiff sued as the registered owner of portion M.51 Malindi (44.75 acres), purchased by Indenture of 26th March 1999 from Farid Abdulrazak Sheikh and registered in his favour. He alleged that on 10th May 2005 the 1st Defendant fraudulently caused a false Indenture purporting a transfer from the Plaintiff to be registered, sub-divided the property into new plot numbers, and transferred the sub-divisions to the 2nd to 6th Defendants without the Plaintiff's knowledge. The Plaintiff discovered the fraud in 2007 through a letter from the Municipal Council of Malindi. The 1st and 6th Defendants filed no defences; the 3rd Defendant pleaded that he bought 15 acres from the 1st Defendant but led no evidence. The hearing proceeded ex parte. The court traced the chain of title from Ahmed Fuad Amir to Farid Abdulrazak Sheikh to the Plaintiff, and found the Plaintiff's uncontroverted evidence established that the 1st Defendant fraudulently registered the transfer in his own name. Applying Macfoy v United Africa Co., the court held that a void act is a nullity conferring no interest, so the 1st Defendant had nothing to transfer, and the 3rd Defendant's derivative title could not stand; his remedy lay against the 1st Defendant and possibly the government. The court found for the Plaintiff on a balance of probabilities and granted declarations of nullity, a permanent injunction, cancellation/rectification of the register, eviction, vacant possession, and costs to the Plaintiff.

Key legal issues

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01

Fraudulent registration of transfer by the 1st Defendant

Holding

The court found that the 1st Defendant fraudulently transferred the suit property to himself without the Plaintiff's knowledge, rendering the registration null and void ab initio

Reasoning

The Plaintiff's uncontroverted evidence established registered ownership since 1999 and payment of rates. The 1st Defendant filed no defence to rebut the fraud allegation. The Indenture of 10th May 2005 and subsequent sale to the 3rd Defendant were unsupported by any evidence from the Defendants, who did not appear at the hearing.

p. 3
02

Effect of a void root title on derivative titles

Holding

A null and void title confers no interest, so the 1st Defendant had nothing to transfer; the 3rd Defendant's bona fide purchaser belief cannot validate the derivative titles

Reasoning

Relying on Lord Denning in Macfoy v United Africa Co., the court held that a void instrument is a nullity needing no order to set aside. Since the 1st Defendant acquired no interest, he could transfer none; the 3rd Defendant's recourse lies against the 1st Defendant and, if circumstances permit, the government.

p. 3
03

Standard of proof in a civil land fraud claim

Holding

The Plaintiff proved his case on a balance of probabilities through uncontroverted evidence

Reasoning

With no defence filed by the 1st, 2nd, 4th, 5th and 6th Defendants and no evidence from the 3rd Defendant supporting the pleaded defence, the Plaintiff's averments stood uncontroverted and were sufficient to discharge the civil burden of proof.

p. 3

Legal principles established

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  • A void act is a nullity and confers no interest; a transferee from a void title acquires nothing, and the derivative titles collapse

Court orders

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  1. 1.Declaration that the Indenture dated 10th May 2005 and titles issued over portion M.51 Malindi are fraudulent, illegal, null and void ab initio
  2. 2.Permanent injunction restraining the Defendants and third parties from entering, occupying, developing, selling, transferring, charging or interfering with portion M.51 Malindi
  3. 3.Order directing the Commission of Lands and Registrar of Titles not to register further titles, transfers or sub-divisions over the suit property
  4. 4.Order directing rectification of the register by cancellation of all entries relating to the Defendants' titles and reinstatement of the Plaintiff as sole legal and beneficial owner
  5. 5.Eviction order against all the Defendants, their servants, agents and proxies
  6. 6.Order directing the Defendants to deliver up vacant possession
  7. 7.The Defendants to pay the costs of the suit

Authorities

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Cases cited (1)

  • MACFOY -Vs- UNITED AFRICA CO. LTD.
    (1961) 2 ALL ER 1169
Jurisdiction invoked
Original civil jurisdiction over land (Plaint filed under civil procedure; no specific constitutional/statutory provision stated)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Taib Ali Taib v Ahmed Fuad Amir & 6 others [2014] KEELC 398 (KLR)", Case Analysis (2014). Civil Case No 61 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/398/eng@2014-05-09

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