Mohamed Kassam Mohamed & 3 others v Hamisi Mohamed Mwawasaa & 4 others [2017] KEELC 1343 (KLR)
The bottom line
#A Mombasa court cancelled land titles obtained through fraud, confirming that long occupation protects your claim even without a title deed.
What this practically means
#Executive summary
#Key legal issues
#Fraudulent acquisition of title by the 1st and 2nd defendants
The registration of the 1st and 2nd defendants was fraudulent; the plaintiffs proved their case
The 1st and 2nd defendants produced no evidence explaining how they acquired title, merely asserting allocation by the retired President in submissions. The Land Registrar could not explain how a second green card was opened for the same parcel without cancellation of the first, and the land was private and in plaintiffs' occupation, hence not available for allocation. Negligence or complicity was imputed to the Registrar.
Passing of title by a fraudulent registrant
The 4th defendant, as purchaser from the 1st and 2nd defendants, acquired no valid title since the transferors had none to pass
Having found that the 1st and 2nd defendants' title was procured by fraud, they had nothing to transfer. Any claim the 4th defendant may have lies against the 1st, 2nd and 3rd defendants and not the plaintiffs.
Plaintiffs' locus and interest in the land
The plaintiffs' long use and occupation of the land gave them a right to bring a claim against the title holders
The plaintiffs' evidence of over 40 years' occupation was unchallenged. They obtained a decree in O.S. No. 473 of 1996 for registration, and even assuming that decree was set aside, occupation alone entitled them to sue to impugn the defendants' registration under sections 28 and 143 of the (repealed) Registered Land Act, now section 26 of the Land Registration Act.
5th defendant's mortgage restriction
The court declined to make any determination on the restriction in favour of the 5th defendant as no prayer was made regarding it
Neither the plaintiffs nor the 5th defendant sought any orders concerning the equitable mortgage restriction; courts grant only what is prayed for in the pleadings unless matters arise during trial warranting orders.
Legal principles established
#- A title may be challenged on grounds of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme
- Evidence cannot be adduced through submissions as that denies the opposing party the right to test it by cross-examination
- The burden of proving allegations of fact lies on the person who alleges
Court orders
#- 1.A declaration that the registration of MOMBASA/BLOCK/XVII/429 in favour of the 1st, 2nd and 4th defendants on 5th November 2002 was fraudulent and/or irregular
- 2.Cancellation of the title issued to the 1st, 2nd and 4th defendants on 5th November 2002
- 3.A mandatory injunction restraining the defendants, their assigns, employees, agents, relatives and spouses from interfering with the title to the suit parcel
- 4.Costs of the suit to be paid by the 1st to 4th defendants jointly and severally
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (Mombasa/Block XVII/429)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Kassam Mohamed & 3 others v Hamisi Mohamed Mwawasaa & 4 others [2017] KEELC 1343 (KLR)", Case Analysis (2017). ELC Civil Suit No. 136 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1343/eng@2017-10-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.