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ELCPartially AllowedELC Civil Suit No. 339 of 2010· [2016] KEELC 394 (KLR)

Omar Abdalla Kondo v Josephine Mwikali Kikenye & 2 others [2016] KEELC 394 (KLR)

High Court of Kenya, Environment and Land Division
5 May 2016
3,897 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Mombasa upheld a land buyer's title and ruled the Registrar could not cancel it without a court order.

What this practically means

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Executive summary

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The plaintiff sued the 1st defendant, the Registrar of Titles Mombasa and the Attorney General seeking cancellation of the 1st defendant's registration and to be registered as owner of Plot No. 3155 (original No. 933/13) Section 111 MN. The plaintiff's case was that he lent the 1st defendant money to settle a debt to one Titus Tommy Gichangi, that further loans followed, and that when the monies were not repaid the 1st defendant sold him the house for Kshs 1,100,000 by an agreement of 24 November 2007, with a transfer registered on 13 May 2008. The 1st defendant denied any sale, asserting the title was security for loans of Kshs 400,000 and 350,000 which she repaid through rent collected by her caretaker and remitted to the plaintiff, and pleaded non est factum; she counter-claimed for nullification of the transfer, an injunction and Kshs 39,090.74. The 2nd and 3rd defendants called no evidence. The court held that the defence of non est factum failed because the defendant, who had prior dealings with the same title and kept a copy of the agreement, laid no basis for it; that the CID inquiry and the document examiner's report exonerated the plaintiff of forgery; that non-payment of stamp duty did not of itself render the transfer fraudulent; and that the Registrar's revocation of the plaintiff's title without a court order was irregular, null and void. The plaintiff's suit was allowed, the counter-claim dismissed, and the 1st defendant ordered to surrender her certificate of title for destruction.

Key legal issues

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01

Whether the defence of non est factum was available to the 1st defendant

Holding

It was unavailable; no misleading by the plaintiff was shown and the defendant knew what she was signing

Reasoning

The defendant had previous dealings with the same title (with Mr Gichangi), admitted authorising collection of rent, kept a copy of the sale agreement, and the document examiner matched her signature on the transfer. She failed to lay a basis for non est factum in evidence and did not prove she took care.

p. 5
02

Whether the registration of the transfer in favour of the plaintiff was regular

Holding

It was in order; no fraud was proved against the plaintiff

Reasoning

The CID inquiry (No 2 of 2009) was closed on advice of the Attorney General because the document examiner found the signatures matched. Failure to produce receipts for stamp duty, rates and transfer fees did not of itself render the transfer fraudulent, and no fraudulent activity was imputed to the plaintiff at registration.

p. 6
03

Whether the Registrar of Titles could lawfully revoke the plaintiff's title and re-transfer the property to the 1st defendant

Holding

The revocation was irregular, null and void as it was done without a court order and contrary to the rectification provisions

Reasoning

Under section 142(1) of the Registered Land Act Cap 300 (repealed) / section 79 of the Land Registration Act 2012, rectification is permitted only in defined circumstances and with notice; under section 143 Cap 300 / section 83 LRA, cancellation requires a court order. The Registrar did the opposite, producing two certificates of title over one property.

p. 6

Legal principles established

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  • Non-payment of stamp duty or transfer fees does not by itself render a transfer fraudulent
  • The burden of proving non est factum lies on the person disowning the signature and includes proof that he or she took care
  • Cancellation of a registered title requires an order of the court; the Registrar could not lawfully revoke the plaintiff's title without one

Court orders

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  1. 1.Plaintiff's prayers in the plaint allowed, cancelling/nullifying the registration of the 1st defendant
  2. 2.1st Defendant's counter-claim dismissed with costs to the plaintiff
  3. 3.1st Defendant directed to surrender the certificate of title in her possession to the Deputy Registrar within 21 days for destruction

Authorities

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Legislation

  • Registered Land Actsection 142(1), 142(1)(c), 143
  • Land Registration Actsection 79, 79(2), 79(4), 83

Cases cited (2)

  • Stephen Ikiao vs M'Iaryu M'Thankari Mikiamba
    (2010) eKLR
  • Saunders vs Anglia Building Society
Jurisdiction invoked
Original civil jurisdiction of the High Court (Environment and Land Division) over the land dispute; no specific constitutional/statutory provision stated in the judgment.

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, "Omar Abdalla Kondo v Josephine Mwikali Kikenye & 2 others [2016] KEELC 394 (KLR)", Case Analysis (2016). ELC Civil Suit No. 339 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/394/eng@2016-05-05

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