Wilfred Josa & another v George Patrick & another [2017] KEELC 2495 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Fraud against the 2nd and 3rd defendants
Not proved; the 2nd defendant is a bona fide purchaser for value without notice
The plaintiffs proved the 1st defendant misrepresented that the title was lost, but produced no evidence that the 2nd or 3rd defendants knew of the earlier sale. The documents replacing the 'lost' title were all in the 1st defendant's name, the 2nd defendant was acquitted of giving false information, and the plaintiffs had neither taken possession nor lodged a caution or restriction on the register to alert third parties.
Whether title passed to the plaintiffs
No; the plaintiffs' claim lies only in breach of contract against the 1st defendant
Although the plaintiffs paid a deposit of Kshs 180,000 and held the original title deed, no transfer was executed or registered, the balance was contingent on payment of rates and rents with no timelines set, and the plaintiffs never took possession. Possession of a title deed alone does not convey title.
The 2nd defendant's counter-claim
Allowed in full; he proved bona fide purchase and was entitled to mesne profits and an injunction
The 2nd defendant paid the full consideration, obtained registration on 7th February 2006, took possession and built nine residential units. No contrary evidence was presented to displace the valuation of Kshs 54,000 per month, and his enjoyment of the rent was curtailed by the plaintiffs' injunction.
Legal principles established
#- Title of a registered owner under section 26 of the Land Registration Act can only be cancelled if it is proved that the registered owner was party to the fraud used to acquire the title
- Fraud must be strictly pleaded and proved to a standard higher than the ordinary civil standard
- Holding a title deed without executed transfer documents does not pass title or interest in land
Court orders
#- 1.Dismissal of the plaintiffs' suit as against the 2nd and 3rd defendants
- 2.The 1st defendant to refund the plaintiffs Kshs 180,000 with interest at court rates from 24th November 1999 until payment in full
- 3.Plaintiffs awarded costs of the suit (as against the 1st defendant)
- 4.Judgment entered in favour of the 2nd defendant against the plaintiffs as contained in prayers (a)–(e) of the counter-claim, namely declaration of lawful ownership, mesne rents of Kshs 54,000 per month from 22.9.06 until determination of the suit, permanent injunction restraining the plaintiffs from interfering with the suit land, interest, and costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to title to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilfred Josa & another v George Patrick & another [2017] KEELC 2495 (KLR)", Case Analysis (2017). ELC Case No. 252 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2495/eng@2017-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.