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ELCPartially AllowedELC Cause No. 411 of 2017 (formerly Nakuru ELC Cause No. 185 of 2012)· [2018] KEELC 212 (KLR)

Kuyiamo Ole Mosompe v Kaikai Ole Karbolo [2018] KEELC 212 (KLR)

Environment and Land Court
20 December 2018
MKMohammed Noor Kullow
798 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land titles obtained through forged fingerprints, confirming that fraud defeats even a registered title under Kenyan law.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant seeking an injunction restraining dealings with Land Parcels CIS MARA/LEMEK/3484 and 3485, cancellation of the Defendant's titles, reissuance of the titles to the Plaintiff, damages and costs. The Plaintiff's case was that on 9th May 2001 he agreed to sell the Defendant about 22 acres at Kshs 10,000 per acre, but the Defendant fraudulently prepared a sale agreement for 75 acres; the land was subdivided and, on or about 21st October 2010, the Defendant fraudulently obtained Land Control Board consent and transferred the parcels to himself. The Defendant was served but filed no defence and did not appear at the hearing. The Plaintiff testified alone and produced the sale agreement, consent and transfer forms, and a document examiner/fingerprint expert report which established that the transfer forms and consent application were not thumb-printed by the Plaintiff. The court held that the Plaintiff's uncontroverted evidence proved fraud on a balance of probabilities, invoking the trite principle that a party who obtains land fraudulently should not be allowed to legitimate the fraud, and section 26 of the Land Registration Act, 2012, under which a certificate of title is prima facie evidence of ownership except where obtained by fraud or misrepresentation. The court entered judgment for the Plaintiff, issuing a permanent injunction, declaring the Defendant's titles null and void, directing the Registrar to cancel the titles and reissue them in the Plaintiff's name, and awarding the Plaintiff the costs of the suit.

Key legal issues

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01

Whether the Defendant's title was obtained by fraud so as to defeat the prima facie protection of a registered title

Holding

Yes - the Defendant fraudulently acquired the land; fraud vitiates the title under section 26 of the Land Registration Act, 2012

Reasoning

The Defendant, though served, filed no defence and led no evidence to controvert the Plaintiff's case. The Plaintiff produced a sale agreement for about 22 acres, mutation forms, and an expert document examiner's report establishing that the transfer forms and Land Control Board consent application were not thumb-printed by the Plaintiff. The court held that uncontroverted evidence of fraud was proved on a balance of probabilities, and that a title tainted with fraud cannot be protected under section 26 of the Land Registration Act.

p. 2

Legal principles established

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  • A party who obtains land fraudulently should not be allowed to legitimate the fraud
  • A certificate of title is prima facie evidence of ownership but is defeasible where obtained by fraud or misrepresentation

Court orders

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  1. 1.A permanent injunction restraining the Defendant, his agents or anyone acting on his instructions from entering, constructing or cultivating on LR NO. CIS MARA/LEMEK/3484 and 3485
  2. 2.Title deeds issued in respect of LR NO. CIS MARA/LEMEK/3484 and 3485 in favour of the Defendant declared null and void
  3. 3.An order to the Registrar to cancel title to LR NO. CIS MARA/LEMEK/3484 and 3485 in the name of the Defendant and reissue the title in the Plaintiff's name
  4. 4.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 26
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (not expressly cited in the judgment)

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, "Kuyiamo Ole Mosompe v Kaikai Ole Karbolo [2018] KEELC 212 (KLR)", Case Analysis (2018). ELC Cause No. 411 of 2017 (formerly Nakuru ELC Cause No. 185 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/212/eng@2018-12-20

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