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)
The bottom line
#A Kenyan court confirmed that only judges, not government officials, can cancel a registered land title, even against later buyers.
What this practically means
#Executive summary
#Key legal issues
#Authority of the Commissioner of Lands to cancel a registered title administratively
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
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.
Whether the 3rd Defendant acquired good title as an innocent purchaser for value
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
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.
Burden of proving that the Plaintiff's title was unlawfully acquired so as to engage Article 40(6) of the Constitution
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
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.
Legal principles established
#- 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
#- 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.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.A declaration that the purported transfer of the land from the 2nd Defendant to the 3rd Defendant was illegal, null and void
- 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.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.A permanent injunction restraining the 3rd Defendant from trespassing onto or interfering with the suit property
- 7.The Defendants to pay the costs of the suit jointly and severally
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.