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ELCAllowedELC Cause No. 53 of 2013· [2017] KEELC 176 (KLR)

Consefuta Kemunto v Dorcas Kwamboka [2017] KEELC 176 (KLR)

Environment and Land Court
19 October 2017
MKMohammed Noor Kullow
742 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisii court cancelled a land title obtained through fraud, confirming Kenyan landowners can reclaim land from fraudulent registered owners.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant seeking rectification of the register to remove and cancel title WEST KITUTU/BOGEKA/3950, alleging that the Defendant fraudulently and without authority caused creation of that title out of the Plaintiff's land, including by inserting her name into mutation forms and presenting forged documents to the lands office. The Defendant filed a defence asserting she had lived peacefully on the suit portion since 1987, having purchased it from one Paulina Kwamboka Nyansiaboka, and denied the fraud. At the hearing on 19 May 2017 only the Plaintiff testified; the Defendant did not attend despite being served with a hearing notice and called no evidence. The Plaintiff testified she owned WEST KITUTU/BOGEKA/3725, signed mutation forms on 7 September 2009 creating parcels 3724 and 3725, obtained consent to sub-divide, sold one parcel to Esther Kerubo Obaga and retained the other. She learnt that the Defendant had acquired parcel WEST KITUTU/BOGEKA/3950. The court held that under the Land Registration Act a challenge to title lies only on grounds of fraud or misrepresentation, or where the certificate was acquired illegally, unprocedurally or through a corrupt scheme. On the Plaintiff's uncontroverted testimony and documents, the court found the Defendant obtained the title by fraud and/or unlawful schemes, held the Plaintiff proved her case under section 26(1)(b) on a balance of probabilities, and ordered rectification of the register to remove and cancel title WEST KITUTU/BOGEKA/3950, plus costs of the suit.

Key legal issues

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01

Whether the Plaintiff proved fraud sufficient to defeat the Defendant's registered title

Holding

Yes - the Defendant obtained title by fraud and/or unlawful schemes; the Plaintiff proved her case under section 26(1)(b) of the Land Registration Act on a balance of probabilities

Reasoning

The Plaintiff testified that she subdivided her land and created parcels 3724 and 3725, and later sold parcel 3725 to Esther Kerubo Obaga. The Defendant did not appear or call evidence despite service. The mutations used to obtain the Defendant's title for parcel 3950 bore the Plaintiff's name without her signature or authority. The court found that the land Registration Act permits a challenge to title only on grounds of fraud, misrepresentation, or illegal or corrupt acquisition, and found fraud not in doubt on the testimony and documents.

p. 2

Legal principles established

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  • Title to land can only be challenged on the grounds of fraud or misrepresentation, or where the certificate has been acquired illegally, unprocedurally or through a corrupt scheme
  • A plaintiff challenging a registered title must satisfy the requirements of section 26(1)(b) of the Land Registration Act and prove the case on a balance of probabilities

Court orders

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  1. 1.An order to the registrar of titles for rectification of the register to remove title No. WEST KITUTU/BOGEKA/3950 and have the same cancelled
  2. 2.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Land Registration Actsection 26(1)(b)
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to title to land

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, "Consefuta Kemunto v Dorcas Kwamboka [2017] KEELC 176 (KLR)", Case Analysis (2017). ELC Cause No. 53 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/176/eng@2017-10-19

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