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ELCPartially AllowedNot stated in the judgment extract· [2017] KEELC 669 (KLR)

Abdillahi Hassan Abdirihaman & 2 others v Ali Waziri Abubakari& 2 others [2017] KEELC 669 (KLR)

Environment and Land Court
7 December 2017
1,592 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a fraudulent land transfer made without the owners' consent, returning the property to Webuye Jamia Mosque but denying damages due to missing proof of loss.

What this practically means

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Executive summary

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The plaintiffs, registered trustees of Webuye Jamia Mosque, sued the defendants over land parcel Webuye Municipality/Block 1/23, seeking a declaration of ownership, deletion of register entries, a permanent injunction, damages, mesne profits, refund of rent, costs and interest. They pleaded that they were allotted the land in 2000, paid the stand premium and were issued a lease dated 2nd July 2002 in the names of their trustees, but that on 4th March 2010 the defendants fraudulently caused the property to be registered in the names of Patrons of Webuye Muslim Community Shop without their consent. The 1st defendant admitted holding the original title for eight years and surrendering it for change of registration to enable the shop on the land to pay rates, without consulting the registered owners or obtaining consent from the Commissioner of Lands; he had been convicted on four counts of forgery arising from the transaction and fined Kshs.80,000/=. The court held that the plaintiffs' title was regularly obtained, that two trustees were dead and an inhibition on the title subsisted so no transfer was possible, and that the transfer effected on 4th March 2010 was illegal and a nullity. It further found no proof that the Community Shop was a registered body capable of holding land. The court allowed prayers (a), (b) and (c) of the plaint - declaration of ownership, deletion of entries three and four, and permanent injunction - awarded the plaintiffs costs of the suit, but declined damages, mesne profits and refund of rent for lack of proof of loss.

Key legal issues

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01

Validity of the plaintiffs' title to the suit property

Holding

The plaintiffs were issued with a certificate of title as trustees of Webuye Jamia Mosque after due process, and produced all documents arising from that process.

Reasoning

The court found the plaintiffs obtained an allotment, paid the stand premium, were issued a lease dated 2nd July 2002 in the names of the trustees, and never surrendered or transferred the title. Two trustees were dead at the material time of the alleged transfer, and an inhibition/restriction on the title had never been discharged, making transfer impossible.

p. 3
02

Legality of the transfer to the defendants

Holding

The transfer was effected without the plaintiffs' consent and without consent of the Commissioner of Lands, making it illegal and a nullity.

Reasoning

The 1st defendant admitted he held the original title for 8 years, then surrendered it for change of registration to enable the shop on the land to pay rates. He admitted he obtained no consent from the plaintiffs or the Commissioner of Lands. He had also been convicted on four counts of forgery arising from the transfer and fined Kshs.80,000/=, confirming the transfer's illegality. No evidence showed the Community Shop was a registered body capable of owning land.

p. 3
03

Proof of loss and damages

Holding

The plaintiffs proved their claim to the land but failed to prove any loss or damage; no order for damages, mesne profits or refund of rent could issue.

Reasoning

Although the transfer was found to be a nullity and the plaintiffs established ownership, they adduced no evidence quantifying loss, mesne profits or rent collected. Damages must be proved; in their absence the court declined to make any award under that head while allowing the proprietary prayers.

p. 3

Legal principles established

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  • A transfer of registered land effected without the consent of the registered owners (and of the Commissioner of Lands where required) is illegal and a nullity.
  • A claimant seeking damages or mesne profits must prove the loss or damage suffered.

Court orders

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  1. 1.Declaration that Land Parcel Number Webuye Municipality/Block 1/23 belongs to Webuye Jamia Mosque and not Webuye Muslim Community Shop (prayer (a))
  2. 2.Deletion of Entries Number Three (3) and Four (4) in the register of L.R. Number Webuye Municipality/Block 1/23 (prayer (b))
  3. 3.Permanent injunction restraining the defendants, their servants and/or agents from interfering with or dealing with land parcel number Webuye Municipality/Block 1/23 (prayer (c))
  4. 4.The plaintiffs shall have the costs of the suit
Jurisdiction invoked
Original civil jurisdiction over a dispute relating to land (Environment and Land Court)

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, "Abdillahi Hassan Abdirihaman & 2 others v Ali Waziri Abubakari& 2 others [2017] KEELC 669 (KLR)", Case Analysis (2017). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/669/eng@2017-12-07

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