Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC No. 569 of 2011· [2017] KEELC 3815 (KLR)

Antonie Kubondo Murunga v Attorney General & 3 others [2017] KEELC 3815 (KLR)

High Court of Kenya, Environment and Land Court
27 September 2017
LGL. Gacheru
5,307 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Plaintiff purchased parcel LR No.209/12312 (Grant I.R.65409) from the 2nd Defendant and was registered as proprietor in 2008. He later found that his parcel did not exist on the ground, having been overlapped and swallowed by parcels LR No.14720 and 14721 owned by the 3rd and 4th Defendants. He sued the Attorney General (for the Ministry of Lands), the vendor, and the two neighbouring proprietors, seeking replacement land, alternatively refunds, ejectment, general and special damages. All contested Defendants denied liability; the 4th Defendant did not enter appearance and interlocutory judgment was entered against it. A Government Surveyor's report established that three overlapping surveys of the same area, commissioned by the Commissioner of Lands without cancelling prior plans, caused the confusion by which the Plaintiff's plot was swallowed. The court held that the Plaintiff and the 3rd and 4th Defendants each held regularly issued, apparently indefeasible titles, but applying the first-in-time principle, titles from the first authenticated survey plan of 12th September 1990 prevail. The Plaintiff's title issued from a mistake occasioned by the Commissioner of Lands' negligence, so under Section 80 of the Land Registration Act the court annulled the Plaintiff's title and directed cancellation of the registration. Because the Plaintiff was blameless, Section 81 entitled him to indemnity; the court awarded Kshs.15,000,000/= per the valuation report as market value, general damages of Kshs.2,000,000/=, and specially proved special damages of Kshs.147,046/=, plus costs and interest, all against the 1st Defendant only. The claim against the 2nd, 3rd and 4th Defendants was dismissed with no orders as to costs.

Key legal issues

#
01

Existence and disappearance of the Plaintiff's parcel of land

Holding

The Plaintiff's parcel LR No.209/12312 existed at purchase but was swallowed by parcels LR No.14720 and 14721 created from an earlier authenticated survey plan, owing to confusion caused by three overlapping surveys commissioned by the Commissioner of Lands.

Reasoning

The Government Surveyor testified that three survey plans covering the same area (F/R/199/56, F/R 2461/49 and F/R 266/129) were authenticated without cancelling preceding ones, creating 40 and 45 plots over the same ground. The Plaintiff's plot fell under the second survey and overlapped the earlier-created parcels, so his land literally does not exist on the ground. The confusion was attributable to the Ministry of Lands.

p. 6
02

Indefeasibility of title and which title prevails

Holding

Both the Plaintiff and the 3rd and 4th Defendants held regularly issued certificates of title, but the Plaintiff's title issued from a mistake caused by the Commissioner of Lands' negligence; the titles issuing from the first authenticated survey plan prevail, and the Plaintiff's title must be annulled.

Reasoning

Section 23 of the repealed Registration of Titles Act Cap 281 and now Section 26(1) of the Land Registration Act make registered proprietors absolute and indefeasible owners. However, applying the first-in-time principle, the parcels from the 12th September 1990 plan prevail. Section 80 of the Land Registration Act empowers the court to cancel a registration obtained by fraud or mistake.

p. 7
03

Entitlement to indemnity and its quantum

Holding

The Plaintiff, whose loss was occasioned not by his own conduct but by the negligence of the Ministry of Lands (agent of the 1st Defendant), is entitled to statutory indemnity of Kshs.15,000,000/= being the value immediately before rectification, plus general and specially proved special damages.

Reasoning

Section 81(1) of the Land Registration Act entitles a person suffering damage from rectification of the register to indemnity, and Section 82(b) caps it at the value of the interest immediately before rectification. The valuation report by PW2 fixed the market value at Kshs.15,000,000/=. The 1st Defendant had no alternative land to give, so monetary indemnity was appropriate.

p. 7

Legal principles established

#
  • Where duplicate titles over the same land issue by mistake, the first in time prevails because the original title retains its sanctity absent cancellation
  • A registered proprietor is the absolute and indefeasible owner of the land, and the title is not subject to challenge except on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
  • A person suffering damage by reason of rectification of the register is entitled to indemnity from the Government

Court orders

#
  1. 1.Judgment entered for the Plaintiff against the 1st Defendant only
  2. 2.1st Defendant to pay indemnity of Kshs.15,000,000/= per the Valuation Report as prevailing market value
  3. 3.General damages of Kshs.2,000,000/= against the 1st Defendant
  4. 4.Special damages of Kshs.147,046/= against the 1st Defendant, specially proved by receipts
  5. 5.Costs of the suit and interest thereon to the Plaintiff against the 1st Defendant
  6. 6.The registration that led to issuance of the Plaintiff's title over LR No.209/12312 to be cancelled and the register rectified
  7. 7.Plaintiff's claim against the 2nd, 3rd and 4th Defendants dismissed with no orders as to costs

Authorities

#

Legislation

  • Registration of Titles Act (now repealed)Section 23
  • Land Registration ActSection 26(1)
  • Land Registration ActSections 24 and 25
  • Land Registration ActSection 80
  • Land Registration ActSection 81(1)
  • Land Registration ActSection 82
  • Constitution of Kenya 2010Article 40

Cases cited (2)

  • Gitwany Investment Limited v Tajmal Limited & 3 others
    Nairobi HCCC No.1114 of 2002 (2006) eKLR
  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No.239 of 2009
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Land Registration Act (Sections 80, 81, 82) and Article 40 of the Constitution of Kenya 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Antonie Kubondo Murunga v Attorney General & 3 others [2017] KEELC 3815 (KLR)", Case Analysis (2017). ELC No. 569 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3815/eng@2017-09-27

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