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ELCAllowedNot stated in the judgment (filed in Mombasa on 11th October 2007)· [2016] KEELC 768 (KLR)

Madeteni Ltd v Attorney General (sued on behalf of the Government of Kenya, the Commissioner of Lands and the Kilifi District Land Registrar) & 2 others [2016] KEELC 768 (KLR)

Environment and Land Court
1 July 2016
5,115 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that only judges, not government officials, can cancel a registered land title, even against later buyers.

What this practically means

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Executive summary

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The Plaintiff company bought Kilifi/Madeteni/368 in 1984 and obtained a Land Certificate. Unknown to it, the Commissioner of Lands in 1986 purported to cancel its title via Gazette Notice No. 2505, and in 2001 a Title Deed was issued to the 2nd Defendant, the widow of James Kazungu whom the Plaintiff had successfully sued as a trespasser in Mombasa HCCC No. 142 of 1994. In 2007 the 2nd Defendant sold the land to the 3rd Defendant, a company associated with Barbara Ann Tyack and Alex Hooper, non-citizens. The 1st and 2nd Defendants did not defend the suit or adduce evidence. The court held that their case was uncontroverted, that the gazette notice did not identify any title cancelled or the law invoked, and that the Commissioner of Lands had no power to cancel a registered title without notice, only the court being empowered under s.143 of the RLA to order rectification on proof of fraud or mistake. The cancellation and subsequent grant were null and void ab initio, so no valid title passed to the 3rd Defendant, the doctrine of innocent purchaser for value notwithstanding. The Defendants also failed to prove the Plaintiff's acquisition was unlawful under Article 40(6). The court allowed the Re-amended Plaint, declared the Plaintiff the bona fide proprietor, annulled the removal of its name and the transfer to the 3rd Defendant, ordered rectification of the register, and issued mandatory and permanent injunctions, with costs against all Defendants jointly and severally.

Key legal issues

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01

Authority of the Commissioner of Lands to cancel a registered title administratively

Holding

The 1st Defendant had no power to cancel the Plaintiff's Land Certificate by Gazette Notice without notice to the proprietor; the cancellation was null and void ab initio

Reasoning

The gazette notice did not specify which title was cancelled or the law invoked. Under s.143(1) of the RLA, only the court may order cancellation of a registration upon proof of fraud or mistake. Depriving the proprietor of title without an opportunity to be heard also offended settled principles of natural justice. The administrative cancellation followed by allocation to the 2nd Defendant was therefore fraudulent and void.

p. 7
02

Whether the 3rd Defendant acquired good title as an innocent purchaser for value

Holding

No title passed to the 3rd Defendant because the 2nd Defendant's own title was a nullity; the doctrine of innocent purchaser cannot apply where the transferor had no title

Reasoning

Since the court declared the cancellation of the Plaintiff's title and the grant of title to the 2nd Defendant null and void, the 2nd Defendant had nothing to transfer. Citing the Court of Appeal in Samuel Kamara and Arthi Highway Developers, the court held that a purchaser cannot take free of legal rights where the vendor's title was void. The Plaintiff never parted with its title, and the Defendants did not prove the Plaintiff's acquisition was fraudulent.

p. 8
03

Burden of proving that the Plaintiff's title was unlawfully acquired so as to engage Article 40(6) of the Constitution

Holding

The Defendants failed to prove that the Plaintiff or its predecessor acquired the land unlawfully, so Article 40(6) did not apply and the property was not available for allocation

Reasoning

The Defendants produced no evidence showing that the Plaintiff or Esther Nyokabi Kamau fraudulently or unlawfully acquired the suit property. In the absence of such proof, the Plaintiff's title stood, and by the time the 2nd Defendant was issued a title in 2001 the property was not available for allocation.

p. 8

Legal principles established

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  • Only the court may order cancellation of a registration and rectification of the register under the repealed Registered Land Act where fraud or mistake is shown
  • Where an original title is cancelled without lawful authority, subsequent transferees, even innocent purchasers for value, acquire no good title
  • A registered proprietor whose root of title is challenged must prove the legality of acquisition beyond the title instrument
  • Non-appearance of a defendant results in the plaintiff's case being held uncontroverted as against that defendant

Court orders

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  1. 1.A declaration that the Plaintiff is and has always been the bona fide proprietor of parcel of land known as Kilifi/Madeteni/368
  2. 2.A declaration that the purported removal of the Plaintiff's name from the Land Register and entry of the 2nd Defendant's name was illegal, null and void
  3. 3.A declaration that the purported transfer of the land from the 2nd Defendant to the 3rd Defendant was illegal, null and void
  4. 4.An order directing the Kilifi Land Registrar to rectify the Land Register by cancelling the 3rd Defendant's name and substituting the Plaintiff's name as proprietor
  5. 5.A mandatory injunction compelling the 3rd Defendant, its directors, shareholders, servants or employees to vacate the land and deliver vacant possession to the Plaintiff
  6. 6.A permanent injunction restraining the 3rd Defendant from trespassing onto or interfering with the suit property
  7. 7.The Defendants to pay the costs of the suit jointly and severally

Authorities

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Legislation

  • Registered Land Act (repealed)Section 143(1) and 143(2)
  • Land Registration ActSection 107(1)
  • Constitution of Kenya, 2010Article 40(6)

Cases cited (6)

  • Abraham Mukunya Vs Mega Spin Limited
    (2014) eKLR
  • Peter Nganga Muiruri Vs Barclays Bank Limited
    (2015) eKLR
  • Samuel Komora Vs Land Registrar, Kajiado
    (2015) eKLR
  • West End Butchary Limited Vs Athi Highway Developers Ltd & 6 others
    (2012) eKLR
  • Munyu Maina vs Hiram Gathina Maina
    Civil Appeal No. 239 of 2009
  • Arthi Highway Developers Limited Vs West End Butchery Limited & 6 Others
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction in a land dispute; provisions of the Registered Land Act (s.143) and Land Registration Act (s.107) invoked

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, "Madeteni Ltd v Attorney General (sued on behalf of the Government of Kenya, the Commissioner of Lands and the Kilifi District Land Registrar) & 2 others [2016] KEELC 768 (KLR)", Case Analysis (2016). Not stated in the judgment (filed in Mombasa on 11th October 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/768/eng@2016-07-01

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