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ELCPartially AllowedELC Case No. 171 of 2013 (consolidated with Petition No. 9 of 2013)· [2014] KEELC 509 (KLR)

Vros Produce Limited & another v Chief Lands Registrar & 525 others [2014] KEELC 509 (KLR)

Environment and Land Court
5 September 2014
OAO. A. Angote
8,962 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Malindi confirmed that Vros Produce Limited lawfully owns 39 Malindi plots, cancelled a fraudulently obtained consent order, and ordered hundreds of claimants evicted.

What this practically means

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Executive summary

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Two matters were consolidated: Malindi Petition No. 9 of 2013, in which 509 Petitioners claimed that Vros Produce Limited's title to L.R. No. 150/Section IV/Mainland North was fraudulently and unconstitutionally acquired, and ELC Case No. 171 of 2013, in which Vros Produce Limited (C.27992) and Dew Reality Limited sought declarations that they were the genuine owners and that a consent order and decree recorded in the Petition were forgeries. A consent order of 5th July 2013 in the Petition had declared the acquisition null and void, cancelled the title, and directed issuance of provisional certificates to the 1st Petitioner, Joseph Mzungu Nyoka. The court set aside that consent before consolidation. The Defendants largely did not appear; the 1st to 5th Defendants (State) denied involvement in the consent. The Plaintiffs proved through the Registrar of Companies' report, ordered by Tuiyot J in Mombasa HCCC No. 131 of 2010, that certificate C.64998 belongs to Leisure Wash Limited, not Vros Produce Limited, and that Lucas Owiti and Lewis Gogo were not directors of the genuine company. The court found the title history showed lawful transfers and charges with Land Control Board consents from 1963 onwards, no occupation by the Petitioners, and protection of the titles under Article 40 of the Constitution. The Petition was dismissed and the Plaint allowed: declarations issued that C.27992 is the genuine company, that the 7th and 8th Defendants are not directors of Vros Produce Limited, that the consent and decree were nullities obtained fraudulently; transfers and provisional certificates to Nyoka were set aside; fresh titles ordered; a permanent injunction and eviction issued against the 6th to 526th Defendants; criminal investigations directed; and costs awarded to the Plaintiffs.

Key legal issues

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01

Which of the two Vros Produce Limited entities is legitimate

Holding

The 1st Plaintiff, registered as C.27992, is the genuine Vros Produce Limited; certificate C.64998 belongs to Leisure Wash Limited and the purported certificate in the name of Vros Produce Limited is not genuine.

Reasoning

The Registrar of Companies, pursuant to an order of Tuiyot J in Mombasa HCCC No. 131 of 2010, investigated both entities and reported that C.64998 belongs to Leisure Wash Limited and that the certificate bearing the same number in the name of Vros Produce Limited is not genuine. The 7th and 8th Defendants never challenged that report in either proceeding. Further, the suit property had been transferred to C.27992 in 1993, before the purported 1996 registration of C.64998.

p. 25
02

Whether the Petitioners in Petition No. 9 of 2013 had any claim over the suit property

Holding

No; the Petitioners never occupied or possessed the suit property and failed to prove fraud or unlawful acquisition of the title.

Reasoning

The documentary history showed registered transfers and charges with Land Control Board consents from 1963 to 1990, and a government management order in 1966 confirming the land was unoccupied. None of the Petitioners filed claims in the probate cause or proved occupation. The court found the titles constitutionally protected under Article 40 and dismissed the Petition.

p. 29
03

Validity of the consent order and decree in Petition No. 9 of 2013

Holding

The consent of 5th July 2013 and the ensuing decree were fraudulently obtained nullities, set aside by the court.

Reasoning

The genuine Vros Produce Limited was never served with the Petition and never instructed Nabwana Nabwana Advocates; the Attorney General denied instructing State Counsel Richard Ngari, who never entered appearance; the advocates who signed the consent went quiet after service of hearing notices. The court had earlier set aside the consent and consolidated the matters.

p. 31

Legal principles established

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  • The constitutional protection of property rights applies unless the property is shown to have been unlawfully acquired.
  • A consent judgment or decree obtained by fraud and without the authority of the true owner of the company affected is a nullity and may be set aside.

Court orders

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  1. 1.Declaration that the 1st Plaintiff is the only genuinely incorporated company under certificate of incorporation number C.27992, incorporated on 16th August 1984
  2. 2.Declaration that the 7th and 8th Defendants are not Directors of a company incorporated in the name of Vros Produce Limited
  3. 3.Declaration that certificate of incorporation number C.64998 belongs to Leisure Wash Limited and not Vros Produce Limited
  4. 4.Declaration that the consent dated 5th July 2013 in Malindi Petition No. 9 of 2013 is null and void, and set aside
  5. 5.Declaration that the decree dated 5th July 2013 and issued on 15th July 2013 was obtained fraudulently and is set aside
  6. 6.Setting aside of any transaction resulting from or caused by the decree issued in Petition No. 9 of 2013
  7. 7.Setting aside and cancellation of any transfer of the suit property and any Provisional Certificates of Title issued in respect of MN/Section IV/271 to MN/Section IV/309 to Joseph Mzungu Nyoka on his own behalf and on behalf of 508 others
  8. 8.Order that the 1st Defendant issue to the 1st Plaintiff fresh Certificates of Title in respect of the 39 parcels registered as L.R. Nos. MN/Section IV 271 to MN/Section IV/309
  9. 9.Permanent injunction restraining the 6th to 526th Defendants, their servants, associates, agents and legal representatives from interfering with the 39 parcels
  10. 10.Order of eviction against the 6th to 526th Defendants from the 39 parcels
  11. 11.Direction that the 3rd, 4th and 5th Defendants provide security and ensure the suit property is not transferred, wasted, interfered with or trespassed upon
  12. 12.Direction that the 3rd, 4th and 5th Defendants carry out criminal investigations in respect of forgery, misrepresentation, trespass and other criminal activities disclosed in the judgment
  13. 13.Dismissal of Petition No. 9 of 2013 with costs to the 1st Plaintiff
  14. 14.Defendants to pay the Plaintiffs the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Land Registration ActSection 26
  • Companies ActSections 164, 165 and 166
  • Agriculture Act (repealed)Section 187
  • Civil Procedure Rules, 2010Order 12 Rule 2(a)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; constitutional protection of property under Article 40 of the Constitution of Kenya

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, "Vros Produce Limited & another v Chief Lands Registrar & 525 others [2014] KEELC 509 (KLR)", Case Analysis (2014). ELC Case No. 171 of 2013 (consolidated with Petition No. 9 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/509/eng@2014-09-05

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