Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedOriginating Summons filed 22nd September 2014 (Kericho ELC)· [2015] KEELC 151 (KLR)

Too(Suing in her Capacity as the Personal Representative of Kipkoech Tele(Deceased) v Korir & 2 others (Environment and Land Case 51 of 2014) [2015] KEELC 151 (KLR)

Environment and Land Court of Kenya
30 October 2015
MSMunyao Sila
3,946 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Kericho cancelled a fraudulently obtained title and the bank loan charge on it, returning the land to the deceased owner's estate.

What this practically means

#

Executive summary

#
The applicant, holding a limited grant ad litem for the estate of Kipkoech Tele (who died in 1987 without succession proceedings or distribution of his estate), sought rectification of the register for land parcel Kericho/Cheborge/120. In March 2012 the 1st respondent had himself registered as proprietor of the land, 25 years after the registered owner's death, and charged it to Consolidated Bank of Kenya (3rd respondent) for a loan of Kshs 1,200,000/-. When the bank moved to value and sell the property, the applicant discovered the transfer and brought this Originating Summons alleging fraud and falsification of the register. The 1st and 2nd respondents did not participate; the bank, asserting innocence and due diligence via an official search, opposed rectification, arguing the sanctity of its charge, Section 80 of the Land Registration Act, Sections 50 and 53, and economic policy against unsettling secured lending. The court held that the 1st respondent's title was procured by fraud and collusion in the land registry, that under Section 26(1)(a) such a title must be cancelled, and that with no title the 1st respondent could not validly charge the property, so the charge also fell. Section 80(2) did not protect the bank because neither respondent was in possession. The court distinguished the authorities relied on by the bank and ordered cancellation of the title and the charge, rectification of the register reverting the land to the deceased, and costs to the applicant jointly and/or severally against the respondents.

Key legal issues

#
01

Whether the 1st respondent's title was fraudulently procured

Holding

Yes - the registered owner died in 1987 and no succession proceedings were ever taken; registration of the 1st respondent in 2012 could only have been procured by fraud and collusion in the land registry.

Reasoning

The deceased died in 1987 and the estate was never distributed; no succession proceedings were filed. The court found it impossible to explain how the 1st respondent was registered 25 years after the death of the registered owner, concluding that registration was procured by fraud or misrepresentation with collusion of registry officials. Fraud under Section 26(1)(a) strips the title of statutory protection.

p. 2
02

Whether the charge in favour of the 3rd respondent survives cancellation of the fraudulent title

Holding

No - having acquired title by fraud, the 1st respondent had no title to charge; the charge falls with the title and the bank must pursue the 1st respondent personally.

Reasoning

The court reasoned that refusing to cancel the charge would reward fraudsters, enabling unjust enrichment and sanitising fraudulent transactions. Since the fraudster had no capacity to dispose of the property, the subsequent charge was equally invalid, notwithstanding that the bank was innocent and conducted a search. The bank's remedy is personal against the 1st respondent.

p. 3
03

Whether Section 80 of the Land Registration Act shields the 3rd respondent

Holding

No - Section 80(2) protects only a proprietor in possession who acquired the land for valuable consideration without knowledge of the fraud; a chargee not in possession cannot invoke it.

Reasoning

The court read Section 80 as affording a defence against rectification only where the affected person is in possession. Neither the 1st nor the 3rd respondent was in possession; the applicant's family had been in continuous possession. Therefore the bank could not shelter behind Section 80, and any claimed conflict with Section 26 need not be resolved.

p. 5
04

Whether Sections 50 and 53 of the Land Registration Act protect the bank

Holding

No - those provisions deal with prejudicial dispositions made by debtors to defeat creditors and have no application to this case.

Reasoning

The court examined Sections 50 and 53, which address dispositions by debtors intended to hide assets from unsecured creditors, and protection of good-faith acquirers of such dispositions. Since no such prejudicial disposition was in issue, the provisions were irrelevant to the bank's defence, described as vainly clutching at straws.

p. 6

Legal principles established

#
  • Title procured by fraud or misrepresentation, to which the proprietor is a party, is impeachable and must be cancelled under Section 26(1)(a) of the Land Registration Act.
  • Under Section 26(1)(b) of the Land Registration Act, a title obtained illegally, unprocedurally or through a corrupt scheme is impeachable even if the title holder was not party to the vitiating factors.
  • A fraudulent title, once cancelled, renders subsequent dispositions, including charges, void, since the chargee had no capacity to deal with the property.
  • The shelter of Section 80(2) of the Land Registration Act is available only to a proprietor in possession; a chargee not in possession cannot rely on it.

Court orders

#
  1. 1.Title of the 1st respondent to land parcel Kericho/Cheborge/120 declared improperly procured and cancelled
  2. 2.The charge in favour of Consolidated Bank of Kenya cancelled, the 1st respondent having had no title to charge
  3. 3.Register of Kericho/Cheborge/120 rectified to remove entries in favour of Nickson Kipkirui Korir and the charge, with title reverting to Kipkoech Tele
  4. 4.Costs to the applicant jointly and/or severally against the respondents

Authorities

#

Legislation

  • Registered Land Act (CAP 300) (repealed)
  • Land Registration Act, 2012Sections 26, 50, 53, 80
  • Law of Succession Act, CAP 160Section 45
  • Registration of Titles Act, CAP 281 (repealed)Section 23

Cases cited (8)

  • Monica Achieng Akumu & 3 Others vs Dishon Omindi Nyamondo & 2 Others
    (2013) eKLR
  • Alice Wanjiru Thika & Others vs Joseph Gichono Mwangi & Others
    Embu High Court Misc. Application No. 84 of 2007
  • Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & Another
    (2013) eKLR; Eldoret ELC Case No. 609 B of 2012
  • Lwanga vs Registrar of Titles
    Misc. Cause No. 7A of 1977 (1980) HCB 24
  • Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others
    Civil Appeal No. 246 of 2013 (2015) eKLR
  • Charles Karathe Kiarie & 2 Others vs The Administrators of the Estate of John Wallce Mathare (deceased) & 5 Others
    Civil Application Sup. No. 12 of 2013
  • Joyce Wanjiku Madsen & Another vs Daniel Kairu Kiaraho & 3 Others
    (2014) eKLR
  • Nairobi Permanent Markets Society & 11 Others vs Salima Enterprises & 2 Others
    Nairobi Civil Appeal No. 185 of 1997 (1997) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcels (Article 162(2)(b) Constitution implied by the court's jurisdiction over land); suit by Originating Summons

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (7)

#

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, "Too(Suing in her Capacity as the Personal Representative of Kipkoech Tele(Deceased) v Korir & 2 others (Environment and Land Case 51 of 2014) [2015] KEELC 151 (KLR)", Case Analysis (2015). Originating Summons filed 22nd September 2014 (Kericho ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/151/eng@2015-10-30

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