Abdillahi Hassan Abdirihaman & 2 others v Ali Waziri Abubakari& 2 others [2017] KEELC 669 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the plaintiffs' title to the suit property
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.
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.
Legality of the transfer to the defendants
The transfer was effected without the plaintiffs' consent and without consent of the Commissioner of Lands, making it illegal and a nullity.
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.
Proof of loss and damages
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.
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.
Legal principles established
#- 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
#- 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.Deletion of Entries Number Three (3) and Four (4) in the register of L.R. Number Webuye Municipality/Block 1/23 (prayer (b))
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.