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ELCPartially AllowedELC Civil Suit No. 136 of 2012· [2017] KEELC 1343 (KLR)

Mohamed Kassam Mohamed & 3 others v Hamisi Mohamed Mwawasaa & 4 others [2017] KEELC 1343 (KLR)

Environment and Land Court
10 October 2017
3,326 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiffs sued over parcel Mombasa/Block XVII/429, pleading continuous occupation for over 40 years and a decree obtained in MSA HCCC No. 473 of 1996 (OS) against the registered owner, Khadija Umedaly, which the Land Registrar failed to implement. They sought a declaration that the registration of the 1st, 2nd and 4th defendants on 5th November 2002 was fraudulent, cancellation of the titles, a mandatory injunction, costs and interest. Only the plaintiffs called evidence; the 1st, 2nd, 4th and 5th defendants closed their cases without calling evidence, while the Land Registrar testified that two green cards existed for the parcel and that there was no record explaining how the second was opened. The 1st and 2nd defendants asserted in submissions only that the land was allocated to them by the retired President Moi, but the court held that evidence cannot be adduced through submissions. The court found that the plaintiffs' unchallenged occupation gave them standing to sue, that the second green card was irregularly opened, and that the 1st and 2nd defendants' title was fraudulently acquired on private land in the plaintiffs' occupation and thus not available for allocation. Consequently the 4th defendant, a purchaser for Kshs 2 million, obtained no valid title. The court declined to make any determination on the 5th defendant's equitable mortgage restriction since no relief was sought on it. All prayers in the amended plaint were granted, with costs against the 1st to 4th defendants jointly and severally.

Key legal issues

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01

Fraudulent acquisition of title by the 1st and 2nd defendants

Holding

The registration of the 1st and 2nd defendants was fraudulent; the plaintiffs proved their case

Reasoning

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.

p. 5
02

Passing of title by a fraudulent registrant

Holding

The 4th defendant, as purchaser from the 1st and 2nd defendants, acquired no valid title since the transferors had none to pass

Reasoning

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.

p. 5
03

Plaintiffs' locus and interest in the land

Holding

The plaintiffs' long use and occupation of the land gave them a right to bring a claim against the title holders

Reasoning

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.

p. 4
04

5th defendant's mortgage restriction

Holding

The court declined to make any determination on the restriction in favour of the 5th defendant as no prayer was made regarding it

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Cancellation of the title issued to the 1st, 2nd and 4th defendants on 5th November 2002
  3. 3.A mandatory injunction restraining the defendants, their assigns, employees, agents, relatives and spouses from interfering with the title to the suit parcel
  4. 4.Costs of the suit to be paid by the 1st to 4th defendants jointly and severally

Authorities

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Legislation

  • Evidence Actsections 107, 108 and 109
  • Land Registration Actsection 25; section 26(1)(a) and (b)
  • Registered Land Act (repealed)sections 28 and 143; Cap 300
  • Registration of Titles Act (repealed)title issued thereunder
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (Mombasa/Block XVII/429)

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, "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.