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ELCPartially AllowedNot stated in the judgment (plaint dated 18th January 2012)· [2017] KEELC 3247 (KLR)

Elmbukara Limited v Alice Waithira Kimani & 2 others [2017] KEELC 3247 (KLR)

Environment and Land Court
17 February 2017
1,600 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff company sued by plaint dated 18th January 2012 (orally amended on 28th July 2016) seeking a declaration of ownership of land parcel Ruiru Township 393, rectification of the register, cancellation of the 1st defendant's title deed, removal of a restriction registered by the 2nd defendant, general damages, costs and interest. The plaintiff pleaded that it purchased the suit property in 1997 and was registered as owner on 13th August 1997, but a search on 17th September 2011 revealed the property had been transferred to the 1st defendant on 22nd July 2003, allegedly fraudulently, and that the 2nd defendant had registered a restriction on the title. The 1st defendant, served by substituted service, did not enter appearance. The 2nd and 3rd defendants filed a defence but closed their case without calling any witness. At the hearing, PW1 Sammy Njoroge Nguchitta, a director, traced the plaintiff's purchase from Simon Mwarangu Makumi for Kshs. 150,000 and its 1997 registration, and testified the 1st defendant was unknown to the plaintiff and never occupied the property. The court framed two issues: whether the 1st defendant acquired the property fraudulently, and whether the plaintiff was entitled to the reliefs sought. Applying sections 24, 25, 26(1) and 80(1) of the Land Registration Act, 2012 and the Munyu Maina decision on proof of root of title, the court held that with no evidence from the defendants, the only inference was that the 1st defendant's acquisition was fraudulent, rendering the title challengeable. Judgment was entered for the plaintiff on a declaration, rectification and cancellation of the 1st defendant's title, removal of the restriction, and costs against the 1st defendant only. General damages were not awarded.

Key legal issues

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01

Whether the 1st defendant fraudulently acquired the suit property

Holding

Yes. In the absence of any evidence from the defendants as to how the 1st defendant acquired the property, the only inference was that the acquisition was fraudulent, and the certificate of lease was open to challenge under section 26(1).

Reasoning

The plaintiff traced its root of title: purchase from Simon Mwarangu Makumi for Kshs. 150,000 and registration on 13th August 1997 with a certificate of lease. The 1st defendant, though served by substituted service, did not enter appearance or adduce evidence. PW1 testified that the plaintiff had no dealings with the 1st defendant, who never occupied the property. The 2nd defendant had itself registered a restriction on suspicion of fraud. With the defendants' case closed without a witness, the plaintiff's evidence of fraud stood uncontroverted, permitting the inference of fraud.

p. 3
02

Whether the plaintiff is entitled to the reliefs sought

Holding

Partially. The declaration, rectification of the register, cancellation of the 1st defendant's title and removal of the restriction were granted; general damages were not awarded.

Reasoning

Having found the 1st defendant's registration was procured by fraud, the court invoked section 80(1) of the Land Registration Act to rectify the register and section 26(1) to treat the certificate of lease as challengeable. The relief granted tracked the amended plaint except for general damages, which the court declined, and costs were confined to the 1st defendant alone rather than all defendants.

p. 3

Legal principles established

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  • When a registered proprietor's root of title is under challenge, it is not sufficient to produce the instrument of title; the proprietor must prove the legality of how the title was acquired.
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership but is challengeable on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition.
  • The court has power under section 80(1) of the Land Registration Act to rectify the register where a registration was obtained by fraud or mistake.

Court orders

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  1. 1.A declaration that the plaintiff is the lawful owner of Land Parcel No. Ruiru Township 393
  2. 2.An order for the rectification of the register of Land Parcel No. Ruiru Township 393 by the cancellation of registration of the 1st defendant as the owner thereof together with the certificate of lease issued to her, and registration of the property in the name of the plaintiff
  3. 3.An order directing the 2nd defendant to remove the restriction registered against the register of Land Parcel No. Ruiru Township 393 on 17th September 2008
  4. 4.The costs of the suit to be paid by the 1st defendant only

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 28
  • Land Registration ActSection 80(1)

Cases cited (1)

  • Munyu Maina vs. Hiram Gathiha Maina
    [2013] eKLR
Jurisdiction invoked
Sections 26(1) and 80(1) of the Land Registration Act, 2012 (power to rectify the register where registration was obtained by fraud or mistake)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Elmbukara Limited v Alice Waithira Kimani & 2 others [2017] KEELC 3247 (KLR)", Case Analysis (2017). Not stated in the judgment (plaint dated 18th January 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3247/eng@2017-02-17

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