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ELCPartially AllowedELC No. 489 of 2016· [2017] KEELC 1120 (KLR)

Joseph Kimani Gitau v Land Registrar Naivasha & 2 others [2017] KEELC 1120 (KLR)

Environment and Land Court of Kenya
18 October 2017
MSMunyao Sila
1,233 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 land titles obtained through forged documents, confirming that even registered titles collapse when rooted in fraud.

What this practically means

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Executive summary

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The plaintiff sued the Land Registrar, Naivasha, and two other defendants, claiming to be the rightful owner of Gilgil/Gilgil Block 1/3814 (Kekopey). After his and his wife's title deeds were stolen on 24 September 2015 and a restriction was registered, the restriction was fraudulently lifted and the suit land transferred to the 2nd defendant on 1 December 2015, and by him to the 3rd defendant on 10 February 2016. The plaintiff produced a document examiner's report showing all transfer signatures were forgeries, and that the ID card and photographs used in the transfer were not his. The suit was undefended; none of the defendants entered appearance or filed documents despite service. The court held that although registered title is prima facie indefeasible under Section 26 of the Land Registration Act, 2012, a fraudulently procured title cannot stand; the 2nd defendant's title was impeachable under Section 26(1)(a), and the 3rd defendant's derivative title was unprotected under Section 26(1)(b) without needing to prove his personal involvement in the fraud. The court ordered cancellation of register entries 5 to 9, restoration of the plaintiff as proprietor with the restriction in place, issuance of a fresh title deed to the plaintiff, declared the defendants' titles forgeries null and void, and issued permanent injunctions against dealings with and entry onto the land. However, the claim for mesne profits and general damages failed, as the plaintiff's possession had never been disturbed. Costs were awarded to the plaintiff jointly and/or severally against the defendants.

Key legal issues

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01

Impeachability of a fraudulently procured title

Holding

The 2nd defendant's title, obtained through forged documents, is impeachable under Section 26(1)(a) of the Land Registration Act, 2012

Reasoning

The court held that although the law protects registered title as prima facie absolute and indefeasible, Section 26(1)(a) carves out fraud or misrepresentation to which the proprietor is a party. The document examiner's report showed all signatures used to transfer the land were not the plaintiff's; the ID card used was forged, with a different serial number, different place of issue, and photographs that were not the plaintiff's. The 2nd defendant is now facing criminal charges of forgery and stealing.

p. 2
02

Protection of a derivative title from a fraudulent root

Holding

The 3rd defendant's title, flowing from a fraudulent title, cannot be protected as it was acquired illegally, unprocedurally or through a corrupt scheme

Reasoning

The court reasoned that the 3rd defendant's title emanates from a fraudulent root, and a title acquired illegally, unprocedurally or through a corrupt scheme falls within Section 26(1)(b) of the Land Registration Act. It is unnecessary to prove that the 3rd defendant personally participated in the fraud; the taint of the corrupt scheme attaches to the derivative title.

p. 2

Legal principles established

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  • A title procured by fraud or misrepresentation to which the proprietor is a party is impeachable under Section 26(1)(a) of the Land Registration Act, 2012
  • A title acquired illegally, unprocedurally or through a corrupt scheme is not protected even where the holder did not personally participate in the fraud

Court orders

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  1. 1.The 1st defendant (Land Registrar) to cancel entries numbers 5, 6, 7, 8 and 9 in the register of land parcel Gilgil/Gilgil Block 1/3814
  2. 2.The register to reflect that the proper owner of the suit land is the plaintiff, Joseph Kimani Gitau, with a restriction on the title
  3. 3.The Land Registrar to issue the plaintiff with a title deed to the suit land
  4. 4.Declaration that the titles held by the 2nd and 3rd defendants are forgeries, null and void, and the Land Registrar not to register any dealings flowing from those titles
  5. 5.Permanent injunction barring the 2nd and 3rd defendants from entering into any sale or other dealing in respect of Gilgil/Gilgil Block 1/3814 (Kekopey)
  6. 6.Permanent injunction stopping the 2nd and 3rd defendants and/or their servants/agents from entering, taking possession, or interfering with the plaintiff's possession of the suit land
  7. 7.Costs of the suit awarded to the plaintiff jointly and/or severally against the defendants

Authorities

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Legislation

  • Land Registration ActSection 26(1)(a) and (b), Section 26(2)
Jurisdiction invoked
Environment and Land Court jurisdiction ( Environment and Land Court Act ) over title to land parcel Gilgil/Gilgil Block 1/3814 (Kekopey)

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, "Joseph Kimani Gitau v Land Registrar Naivasha & 2 others [2017] KEELC 1120 (KLR)", Case Analysis (2017). ELC No. 489 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1120/eng@2017-10-18

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