Njenga Kubutha v Jane Ngina Kukan & 2 others [2017] KEELC 1001 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled fraudulent land transfers made in defiance of a court judgment, restoring ownership to the original winning buyer.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 16th April, 2013 should be set aside
Yes - the consent was set aside on the ground of collusion between the defendants' advocates and the plaintiff's former advocates, acting against the plaintiff's interest and contrary to public policy.
The court found conflicting affidavit evidence on forgery and held the plaintiff bore the burden of proving it, which he failed to discharge absent expert evidence. However, an advocate's ostensible authority cannot be exercised against the client's interest. Okach & Company signed the consent lifting the preservation order before the court-executed transfer was registered, conferring benefit on the defendants. Collusion was established on the circumstances, rendering the consent order void.
Whether the registrations of the suit property in favour of the defendants/beneficiaries and its transfer to the interested party were unlawful
Yes - the property did not form part of the deceased's estate; the defendants acquired no valid title and passed none to the interested party, whose purchase is defeated by lis pendens.
At the deceased's death a decree existed and a transfer had been court-executed awaiting registration, so the property was not available for distribution. The defendants registered themselves and transferred the property in defiance of the judgment before the 12-year life of the judgment expired. Purchasers pendente lite are bound by the decree, and the defendants cannot profit from their own wrong; the interested party's remedy lies against the defendants.
Whether the plaintiff is entitled to the prayers sought
Partially - the court vacated order No. 2 of the 16th April, 2013 order and granted prayers 7 and 8 (annulment of resultant titles and registration of the plaintiff), but limited prayer 6 to order No. 2 only.
Having found the consent order tainted by collusion and the subsequent titles invalid, the court granted relief sufficient to restore the position under the 2001 judgment and decree. The forgery ground failed, and relief was confined to vacating the lifting of the 1996 preservation order, cancelling the resultant entries, and registering the plaintiff as proprietor, with costs against the defendants only.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract.
- An advocate's ostensible authority cannot be used to consent to orders completely negating the client's interests; such a consent order may be treated as tainted by fraud or collusion and will not be upheld.
- Property decreed to a party before the deceased's death does not form part of the deceased's estate for distribution to beneficiaries.
- An act done in wilful disobedience of a court order is illegal and invalid and cannot effect any change in the rights and liabilities of others; the author of a wrong shall not take advantage of his own wrong.
- The life of a judgment is 12 years from delivery, and part-execution of a decree (court-executed transfer awaiting registration) means the remaining steps are a mere formality.
- The doctrine of lis pendens defeats alienations of property in litigation, overriding section 23 of the Registration of Titles Act.
Court orders
#- 1.Prayer 6 of the application granted limited only to order No. 2 in the court order made on 16th April, 2013 and issued on 23rd April, 2013 (vacating of the consent order lifting the preservation order of 27th December, 1996)
- 2.Prayers 7 and 8 of the application granted (annulment/cancellation of the resultant titles and rectification/restoration of the register, including registration of the plaintiff as proprietor)
- 3.Costs of the application awarded to the plaintiff as against the defendants only
- Jurisdiction invoked
- Original and supervisory jurisdiction over its own suit and process, including setting aside consent orders and rectification of the register in a pending suit (Civil Procedure Act/ Rules regime governing execution, setting aside consent orders and lis pendens)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njenga Kubutha v Jane Ngina Kukan & 2 others [2017] KEELC 1001 (KLR)", Case Analysis (2017). Notice of Motion dated 29th August, 2014 (suit arising from HCCC filed 17th January, 1990). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1001/eng@2017-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.