David Mungai Gitau & Michael Gitau Nganga v another [2017] KEELC 1649 (KLR)
The bottom line
#A Kenyan court restored two families' land ownership, ruling that titles created from a defective tribunal decree were invalid.
What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit parcels based on registration
The Plaintiffs proved they are the registered proprietors of the suit parcels and the court declared them bona fide registered owners
The 1st Plaintiff gave unchallenged evidence that the Plaintiffs were registered on 28/6/99 and 24/7/97 respectively. The Defendant, despite pleading that the Plaintiffs fraudulently transferred the parcels to themselves, neither attended the pre-trial conferences nor adduced evidence, as the suit proceeded undefended. No evidence supported the continued registration of the Defendant's name or any fraud by the Plaintiffs, so the averments remained mere allegations.
Effect of the decree of 13/7/2001 extracted from the LDT award
The decree was already declared null and void by the Resident Magistrate on 26/7/2007 because the award was never entered as a judgment; acts founded on it cannot stand
The Resident Magistrate held that the award of the Land Dispute Tribunal was never entered as a judgment of the court, and any decree granted under a mistaken belief that the award had been entered was null and void and was struck off the record. The Plaintiffs' subsequent attempt to found a claim for restitution under section 91 of the Civil Procedure Act on that null decree was dismissed for the same reason, leading them to file the present suit.
Rectification of the register and cancellation of titles issued pursuant to the null decree
The Land Registrar was ordered to delete the impugned entries and restore the earlier entries; titles issued to the Defendant pursuant to the null decree were declared null and void and deemed cancelled
Since the entries substituting the Defendant's name were founded on a decree held to be a nullity, and the tribunal awards and appeal committee decision were set aside by the High Court, there were no orders supporting the continued registration of the Defendant's name. The court therefore ordered rectification of the register in favour of the Plaintiffs' prior entries and declared the Defendant's titles null and void.
Legal principles established
#- A decree extracted when no award has been entered as a judgment of the court is a nullity and has no force of law
- Where the registered proprietor proves registration and no evidence of fraud or illegality is led, the court will declare them the bona fide owner
- Unprosecuted allegations of fraud without pleaded particulars and without evidence remain mere allegations
Court orders
#- 1.A declaration that the 1st Plaintiff DAVID MUNGAI GITAU is still the bona fide registered owner of LOC.6/GIATHAINI/1462 while the 2nd Plaintiff MICHAEL GITAU NGANGA is still the bona fide registered owner of LOC.6/GIATHAINI/1291
- 2.The Land Registrar, Murang'a County ordered to delete entry No. 5 in the Lands register in respect of LOC.6/GIATHAINI/1462 and restore entries Nos. 3 and 4 and delete entries No. 6 and 5 in respect of LOC 6/GIATHAINI/1291 and restore entries Nos. 3 and 4
- 3.A declaration that any title issued to the Defendant in respect of LOC.6/GIATHAINI/1461 and LOC.6/GIATHAINI/1291 pursuant to the impugned decree is null and void and deemed duly cancelled
- 4.The Plaintiffs shall have the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (suit transferred from CMCC Murang'a to the ELC at Kerugoya)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Mungai Gitau & Michael Gitau Nganga v another [2017] KEELC 1649 (KLR)", Case Analysis (2017). ELC Case (transferred from CMCC Murang'a) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1649/eng@2017-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.