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ELCAllowedNot stated in the judgment (Plaint filed 10/8/15)· [2017] KEELC 1038 (KLR)

Richard Gitau Muguro v Benson Macharia Wandungo & 2 others [2017] KEELC 1038 (KLR)

Environment and Land Court
16 November 2017
JKJ G Kemei
1,736 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a land title bought in good faith because the original registration was fraudulent, returning the property to its rightful owner.

What this practically means

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Executive summary

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The Plaintiff sued over LR No. NGINDA/SAMAR/BLOCK 2/129, alleging that having been allocated plot No. 95 (1 acre) by Mboi Kamiti Farmers Co. Ltd. in 1991 and having completed the purchase price, taken vacant possession in 1993 and signed transfer instruments, he discovered on a site visit in July 2015 that strangers had accosted him and a search revealed the property had been registered in the name of the 1st Defendant on 16/6/14, transferred to the 2nd Defendant on 28/7/14 and to the 3rd Defendant on 15/4/2015. He sought declarations of fraud, cancellation of the 3rd Defendant's title, re-registration in his favour, a permanent injunction and costs, pleading eleven particulars of fraud. The Defendants did not enter appearance or file a defence despite due service; judgment was entered after formal proof on the Plaintiff's uncontroverted evidence. Applying Section 26 of the Land Registration Act, the court held that while the 3rd Defendant was not shown to be party to the fraud, she acquired a title already tainted at its root and therefore fell within Section 26(b), which removes protection from innocent title holders where the title was acquired illegally, unprocedurally or through a corrupt scheme. The court also invoked Article 40(6) of the Constitution as not protecting unlawfully acquired title. Judgment was entered for the Plaintiff: a declaration of fraud and cancellation of all impugned entries, an order to the Lands Registrar Murang'a to revoke the 3rd Defendant's title and register the Plaintiff as proprietor, a permanent injunction against interference with the property, and costs payable by the defendants.

Key legal issues

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01

Grounds for challenging a registered title under Section 26 of the Land Registration Act

Holding

A title may be challenged only on the ground of fraud or misrepresentation to which the proprietor is a party, or where the certificate of title was acquired illegally, unprocedurally or through a corrupt scheme; a title founded on such a taint conveys no valid interest to subsequent transferees.

Reasoning

The court reproduced Section 26(1) and identified two instances in which a title may be challenged. It found the 1st Defendant's title was obtained by misrepresenting that he was the registered owner, and held that the 2nd and 3rd Defendants, though not proved party to the fraud, acquired a title already tainted and so fell within Section 26(b), which removes protection even from an innocent title holder.

p. 3
02

Uncontroverted evidence and formal proof

Holding

Where defendants do not enter appearance or file a defence despite due service, the plaintiff's evidence stands uncontroverted and is tested at formal proof on a balance of probability.

Reasoning

The Defendants neither filed a memorandum of appearance nor a defence despite service evidenced by affidavit of service. The Plaintiff requested judgment and the matter proceeded to formal proof. The court found that the Plaintiff had demonstrated acquisition of the suit property on a balance of probability and, absent evidence to the contrary, was satisfied the 1st Defendant's title was fraudulently obtained.

p. 4

Legal principles established

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  • A title acquired on the root of a fraudulently obtained title is itself tainted; Section 26(b) of the Land Registration Act removes protection from a subsequent innocent title holder.
  • Article 40(6) of the Constitution does not protect title that is unlawfully acquired.

Court orders

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  1. 1.A declaration that the transfer of the suit property No. NGINDA/SAMAR/BLOCK 2/129 into the 1st Defendant was fraudulent and all subsequent transfers and entries in the names of the 2nd and 3rd Defendants were fraudulent and are hereby cancelled
  2. 2.The Lands Registrar Murang'a to revoke and cancel Title Number NGINDA/SAMAR/BLOCK 2/129 in the names of the 3rd Defendant and register the Plaintiff as proprietor
  3. 3.A permanent injunction restraining the Defendants, their agents, servants or anyone claiming through them from selling, alienating, charging, transferring or interfering with the Plaintiff's ownership, use and possession of the suit property
  4. 4.The cost of the suit is payable by the defendants

Authorities

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Legislation

  • Land Registration ActSection 26(1) and 26(b)
  • Constitution of Kenya, 2010Article 40(1) and 40(6)

Cases cited (5)

  • Chase International Corporation and another vs Laxman Keshra and others
    (1978) KLR 143: (1976-1980) eKLR 891
  • Katende vs Haridas and Company Limited
  • Daniel Ricci vs County Land Registrar Kilifi & Attorney General
    ELC Case No 178 of 2013
  • Elijah Makeri Nyangw'ra vs Stephen Mungai Njuguna & Anor
    ELC No 609 of 2012 (formerly HCC 47 of 2010)
  • Solomon K. Songok vs Susan Jepkosgei
    ELC case no 747 of 2012 (formerly HCC No 147 of 2011)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land title and registration disputes (Environment and Land Court Act; Land Registration Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Richard Gitau Muguro v Benson Macharia Wandungo & 2 others [2017] KEELC 1038 (KLR)", Case Analysis (2017). Not stated in the judgment (Plaint filed 10/8/15). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1038/eng@2017-11-16

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