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ELCPartially AllowedELC No. 321 of 2014· [2017] KEELC 1500 (KLR)

Belisi K. Asena (suing as the administrator of the late Nathan Asena Ndugu v Japhet Isinga [2017] KEELC 1500 (KLR)

Environment and Land Court
10 October 2017
2,013 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 obtained by tampering with Land Control Board records, showing registered titles can be challenged for fraud.

What this practically means

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Executive summary

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The plaintiff, administrator ad litem of the estate of Nathan Asena Ndugu (deceased), sued the defendant over land parcel KAKAMEGA/MBALE/545. She alleged that the deceased sold the defendant only a portion measuring 47ft by 78ft for Kshs 70,000/= on 15 October 1988, but the defendant fraudulently caused the whole parcel to be transferred to himself in November 1994 instead of effecting a sub-division, and later issued a demand to vacate. She sought cancellation of the defendant's registration, surrender of the title deed, and a permanent injunction against eviction. The defendant admitted the purchase but asserted he bought the entire parcel, that the deceased voluntarily executed the transfer before a magistrate and the Land Control Board, and counterclaimed for eviction and a permanent injunction. The court applied Sections 24(a) and 26(1) of the Land Registration Act and the decision in Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another on the exceptions to indefeasibility of title. Critically, it examined the Land Control Board minutes of 27 May 1994, which recorded the deceased as transferring plot Mbale/1415, and found the crossing out of 1415 and insertion of 545 to be a forgery without counter-signature. It concluded the deceased was transferring the sub-divided portion, not the whole parcel, and that the plaintiff had proved her case on a balance of probabilities. Judgment was entered for the plaintiff: the defendant's registration of the whole parcel was cancelled, the land reverting to the deceased's name for proper sub-division upon proof of clearance of the purchase price; the defendant was ordered to surrender the title deed; and a permanent injunction restraining eviction of the plaintiff issued. The defendant's counterclaim was dismissed with costs, and costs of the suit were awarded to the plaintiff.

Key legal issues

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01

Whether the plaintiff proved fraud in the defendant's acquisition of the whole parcel KAKAMEGA/MBALE/545

Holding

Yes; the plaintiff proved on a balance of probabilities that the deceased was transferring only a portion (plot Mbale/1415) and that the insertion of 545 in the Land Control Board minutes was a forgery

Reasoning

The court compared the sale agreement of 15 October 1988 showing a purchase of a 47ft by 78ft portion with the Land Control Board minutes of 27 May 1994. The minutes recorded the deceased applying for transfer of plot No. Mbale/1415 with consent for sub-division already issued. Plot 1415 had been crossed out and replaced with 545 without counter-signature, which the court found to be a forgery. It therefore concluded the deceased signed transfer forms for the sub-divided portion, not the whole parcel.

p. 3
02

Whether the defendant's registered title was protected under Sections 24 and 26 of the Land Registration Act

Holding

No; the indefeasibility of title under the Land Registration Act yields to proof of fraud or illegal/unprocedural acquisition, which the plaintiff established

Reasoning

The court invoked Section 24(a) on vesting of absolute ownership and Section 26(1) on the prima facie indefeasibility of a certificate of title, read with the two statutory exceptions: fraud or misrepresentation to which the proprietor is a party, and acquisition illegally, unprocedurally or through a corrupt scheme. Applying the Elijah Makeri Nyangw'ra decision, it found the first exception engaged because the transfer documents were tampered with, so the whole-parcel registration could be cancelled.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person, subject to the Act
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge on grounds of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme
  • Title in the hands of an innocent third party can be impugned if it is proved that the title was obtained illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.An order for cancellation of the defendant's name as the sole registered owner of land parcel KAKAMEGA/MBALE/545 and the land reverts in the names of Nathan Asena Ndugu (deceased) for purposes of proper sub-division as per the agreement, upon the defendant proving clearance of the purchase price
  2. 2.An order directing the defendant to surrender to the Land Registrar the title deed for KAKAMEGA/MBALE/545 for cancellation
  3. 3.An order for permanent injunction restraining the defendant from evicting the plaintiff from the portion she legally occupies on the suit land
  4. 4.Costs of the suit to the plaintiff; the counterclaim dismissed with costs
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied from the court's jurisdiction over land); suit instituted by plaint

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, "Belisi K. Asena (suing as the administrator of the late Nathan Asena Ndugu v Japhet Isinga [2017] KEELC 1500 (KLR)", Case Analysis (2017). ELC No. 321 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1500/eng@2017-10-10

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