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ELCPartially AllowedELC Suit (Nakuru), filed 2010· [2017] KEELC 1589 (KLR)

Elias Joseph Waburi Wamunyu v Joseph Mwangi Njoroge [2017] KEELC 1589 (KLR)

Environment and Land Court
20 September 2017
13,667 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nakuru cancelled a land title it found was fraudulently backdated and upheld the rival owner's title instead.

What this practically means

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Executive summary

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The plaintiff sued in 2010 seeking declaration of ownership of Nyandarua/Mawingo/764 (8.1 Ha, 20 acres purchased from Simon Njoroge Munywe), cancellation of title No. 725, the defendant's eviction and a permanent injunction. The defendant counterclaimed for declaration of ownership of Nyandarua/Mawingo/725 (4 acres), which he had obtained by executing a decree in Nyahururu PMCC No. 186 of 1993 against Munywe, alternatively by adverse possession. Two rival mutation forms, Green Cards and Registry Index Maps emerged, each subdividing parcel No. 90 differently. The court found the defendant's subdivision into parcels 724 and 725 was created first (mutation presented and paid for on 17 November 1993, title issued 31 March 1994), while the plaintiff's subdivision into parcels 761 and 764 was a later fabrication: the plaintiff's title deed was backdated, the Green Cards to parcels 761 and 764 were not reconstructed but newly 'constructed' in 2008, and the RIM relied on by the plaintiff was manufactured with a backdated, non-chronological entry No. 11 to erase parcels 724 and 725. The court declared the defendant the legitimate proprietor of parcel 725, declared the plaintiff's subdivision fraudulent and null and void, cancelled the plaintiff's title to parcel 764, and directed the issuance of a fresh title of about 16 acres carved out of parcel 724. Land officials were ordered to restore the register and map. The alternative adverse possession claim failed for interruption by a 2005 criminal charge. Costs of the suit and counterclaim were awarded to the defendant.

Key legal issues

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01

Authenticity of the two competing title deeds and Green Cards

Holding

The plaintiff's title deed to parcel 764 was backdated and fraudulently created during a purported 'reconstruction' of Green Cards in 2008; the defendant's title to parcel 725, arising from execution of a court decree, is authentic

Reasoning

The earliest Green Card (extracted 24 May 2006) showed parcel 90 closed into 724 and 725. The plaintiff's version required parcels 761-765 to have been entered on 31 March 1994, but these entries appeared only after the Chief Land Registrar's 2006/2007 reconstruction letters. A 2008 signature purported to authenticate a 1994 disposal, and the plaintiff's title deed bore a date (30 March 1994) before the register was opened. The court found the reconstruction was in fact a construction making the defendant's titles disappear.

p. 13
02

Which of the two conflicting Registry Index Maps is authentic

Holding

The RIM prepared at the Nyeri Provincial Survey Office (reflecting parcels 724 and 725) is authentic; the plaintiff's RIM, prepared in 2009, is a manufactured, backdated map

Reasoning

Entries in a RIM must be chronological and sequential. The plaintiff's map showed entry No. 11 dated 11 August 2009 creating parcels 761 and 764, followed by entry No. 12 dated 21 March 2006 - an impossible sequence. The Provincial Survey Office map showed the same entry No. 11 dated 12 July 2005 creating parcels 724 and 725. Even the plaintiff's own surveyor acknowledged the map was erroneous and that an entry had been erased.

p. 14
03

Whether the plaintiff's claim was time-barred

Holding

The limitation argument was not upheld; the court decided the matter on the substance of the titles

Reasoning

The defendant had submitted that the plaintiff's trespass claim, based on entry in 1989, was barred under Section 7 of the Limitation of Actions Act. The court did not sustain this objection and instead determined the dispute on the evidence of the competing titles, finding for the defendant on the counterclaim.

p. 15
04

Whether the defendant acquired 4 acres by adverse possession

Holding

The alternative claim failed because the criminal charge in 2005 interrupted possession, and the period from 24 January 2007 to the 2010 counterclaim was under 12 years

Reasoning

The court found it unnecessary to consider adverse possession given the finding on title, but held that even if considered, the defendant would fail: a criminal charge for trespass constituted an interruption, restarting time on 24 January 2007, leaving less than 12 years before the counterclaim was filed in 2010. However, the claim would not have failed merely for being brought by counterclaim rather than Originating Summons.

p. 15
05

Res judicata regarding the defendant's 4-acre decree

Holding

The court could not reopen whether the defendant deserved 4 acres, as that was settled by the judgment in Nyahururu Civil Suit No. 186 of 1993; only an appeal could have challenged it

Reasoning

Although the plaintiff argued the defendant was to be refunded his money under the 14 October 1989 agreement, the defendant had obtained a court decree for 4 acres which he properly executed. The res judicata rule barred the court from deciding afresh whether the defendant deserved the 4 acres.

p. 11

Legal principles established

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  • Two persons cannot both hold valid title to the same parcel; entries in a Registry Index Map must be chronological and sequential, and a map backdated to accommodate a party is fraudulent and null
  • A claim for adverse possession raised by way of counterclaim need not be commenced by Originating Summons, and a court may waive procedural irregularity under Article 159(2)(d)
  • A court case, including a criminal charge amounting to trespass, constitutes an interruption of possession for adverse possession purposes

Court orders

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  1. 1.A declaration that the proper subdivision of Nyandarua/Mawingo/90 is the division into parcels 724 and 725
  2. 2.A declaration that the purported subdivision into parcels 761 and 764 was fraudulent and null and void
  3. 3.A declaration that the defendant is the proper and legitimate proprietor of Nyandarua/Mawingo/725 measuring 4 acres or thereabouts
  4. 4.A permanent injunction restraining the plaintiff from interfering with the defendant's land parcel 725
  5. 5.The District Land Surveyor and District Land Registrar, Nyandarua, ordered to amend the Mawingo Settlement Scheme Sheet No. 2 map and registers to show parcels 724 and 725 and that parcels 761 and 764 do not exist
  6. 6.The District Land Registrar and District Land Surveyor ordered to effect administrative amendments so parcels 882, 883, the plaintiff's remainder of about 16 acres, and parcels 4593, 4594 and 4595 flow from parcel 724
  7. 7.Cancellation of the plaintiff's title to Nyandarua/Mawingo/764 and issuance of a fresh title with a new number for the remainder of about 16 acres carved out of parcel 724
  8. 8.Costs of the suit and counterclaim to the defendant

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (5)

  • Haron Onyancha vs National Police Service Commission & Another
    (2017) eKLR
  • IGA vs Makerere University
    (1972) EA 65
  • Board of Governors Kisasi Secondary School vs Johnson Kitheka Kathenge
    (2017) eKLR
  • Bwana vs Said & Others
    (1991) 2KAR 262
  • Joseph Mwangi Theuri & 37 Others vs David Gitonga Mureithi
    Nakuru ELC No. 238 of 2014, (2016) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land title and registration disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Elias Joseph Waburi Wamunyu v Joseph Mwangi Njoroge [2017] KEELC 1589 (KLR)", Case Analysis (2017). ELC Suit (Nakuru), filed 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1589/eng@2017-09-20

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