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ELCAllowedELC Case No. 71 of 2014· [2017] KEELC 3405 (KLR)

Ondieki Okirigiti v Christine Nafula Wepukhulu [2017] KEELC 3405 (KLR)

Environment & Land Court
6 March 2017
EOE. O. ObagaFNF. M. Njoroge
2,147 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale court cancelled a land registration obtained through forged documents and gave the plot to the buyer who paid for it first.

What this practically means

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Executive summary

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The plaintiff sued the defendant seeking rectification of the register in respect of LR No. Kitale Municipality Block 2/Tuwan/4473, one of the plots of Tuwan Farm Company Limited allotted to shareholders. The plaintiff claimed he bought unsurveyed Plot No. 1473 from John Kipsongok Arap Lelei in April 2008; the agreement was later varied through the vendor's authorised daughter at a reduced consideration. When he sought to process title he found the defendant's late husband, Andrew Wanjala Masibo, was processing documents for the same plot. Before the Chief of Tuwan Location the deceased allegedly admitted irregularly registering the documents in his name, but declined to sign a surrender agreement after consulting the defendant. The deceased died in June 2011 and the defendant obtained title in April 2012. The defendant maintained her husband bought the land on 25th February 2007 and was issued a share certificate. The court found the plaintiff's witnesses truthful and the vendor credible; the deceased's alleged agreement had the plot number inserted in different pen and ink and was never put to the vendor. Documents supporting the defendant's registration bore a wrong postal address, included a transfer executed after the deceased's death by a dead man, and a transfer lodged before its stated date. The court held the plaintiff proved fraud to the required standard, ordered the Land Registrar Trans-Nzoia County to cancel the defendant's registration and substitute the plaintiff's name, with costs to the plaintiff. Judgment signed by E. O. Obaga J and delivered at Kitale by F. M. Njoroge J on 6th March 2017.

Key legal issues

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01

Whether the plaintiff or the deceased purchased the suit land from John Kipsongok Arap Lelei

Holding

The court found that the plaintiff, not the deceased, purchased the suit land.

Reasoning

The plaintiff produced sale agreements (exhibits 1 and 2) which the vendor endorsed, confirming his daughter's authority. The vendor testified and denied selling the suit land to the deceased, insisting he sold plot 1472 to him. The deceased's alleged agreement of 25th February 2007 showed the plot number inserted in different pen and ink, with all witnesses from the deceased's side, and was never put to the vendor to confirm or deny. The Chief corroborated the plaintiff's account. The plaintiff's witnesses were believed.

p. 3
02

Whether the registration of the suit land in the defendant's name was procured by fraud

Holding

The court found the suit land was fraudulently registered in the defendant's name.

Reasoning

Defence documents showed the company's postal address as 3944 Kitale instead of the correct Box 718 Kitale, appearing only on documents obtained by the defendant. A transfer dated 10th November 2011 was executed by Andrew Masibo although he had died on 25th June 2011, and plot numbers were inserted in different pen and ink. A transfer dated 30th May 2012 was lodged for registration in April 2012. No succession had been carried out. The documents were forgeries and the registration fraudulent.

p. 3

Legal principles established

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  • Allegations of fraud must be particularly pleaded and proved to a standard higher than a balance of probabilities though below the criminal standard.

Court orders

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  1. 1.The Land Registrar Trans-Nzoia County to cancel the registration of the defendant in respect of LR No. Kitale Municipality Block 1/Tuwan 4473 and replace it with the name of the plaintiff
  2. 2.The defendant to pay the costs of the suit to the plaintiff
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land registered in Trans-Nzoia County

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, "Ondieki Okirigiti v Christine Nafula Wepukhulu [2017] KEELC 3405 (KLR)", Case Analysis (2017). ELC Case No. 71 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3405/eng@2017-03-06

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