Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedMombasa HCCC No. 110 of 2005 (OS) referenced suit; application dated 8th September 2016 in the ELC suit· [2018] KEELC 452 (KLR)

Firoza A. Jiwaji & another v Seleiman Mwinyi Ganyuma & 3 others [2018] KEELC 452 (KLR)

Environment and Land Court
6 December 2018
2,798 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Mombasa court cancelled land titles built on a forged court order, ruling buyers must prove where their documents came from.

What this practically means

#

Executive summary

#
This was a ruling on a notice of motion dated 8th September 2016 in an Environment and Land Court suit at Mombasa, brought by the Plaintiffs under Articles 25(c), 35(1), 40, 47 and 159(2)(b) of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure provisions. The Plaintiffs sought production for scrutiny of a document purporting to be a vesting order issued on 17.7.2006 in Mombasa HCCC No. 110 of 2005 (OS), expungement of that document and the 3rd Defendant's further affidavit, an investigation by the Deputy Registrar into the existence of that court file, and, if the order was a forgery, declaration of forgery, cancellation of the 1st and 3rd Defendants' registrations and striking out of the defences. The Deputy Registrar swore an affidavit confirming that no suit was registered as HCCC No. 110 of 2005 (Selemani Mwinyi Ganyuma v Feroz & Tehzin Jiwaji), and no record existed of the file leaving the registry for hearing or sealing of any order. The 1st and 2nd Defendants filed no response; the 3rd Defendant opposed, claiming innocence and arguing the court could not declare a forgery or cancel title without hearing witnesses. Justice A. Omollo held the 3rd Defendant bore a duty to explain how he obtained the order and could not claim innocence without doing so, rejected the submission that witnesses were required, and found that a full trial would be academic. The application was allowed: the vesting order was expunged as a forgery, the registrations were cancelled, the defences were struck out, judgment was entered for the Plaintiffs on prayers (a)-(f), (j) and (k) of the plaint, with formal proof on prayers (g), (m) and (n), and costs of the application awarded to the Plaintiffs against the 1st Defendant. Delivered at Mombasa on 6th December 2018.

Key legal issues

#
01

Existence and authenticity of the impugned vesting order

Holding

The order is a forgery since no such suit was ever registered in HCCC No. 110 of 2005 (OS)

Reasoning

The Deputy Registrar perused the Registers of Civil Cases, Miscellaneous Applications and the Files Movement Control Register and confirmed no suit registered as HCCC No. 110 of 2005 between Selemani Mwinyi Ganyuma and the Jiwajis, and no record of the file leaving the registry for hearing or for signing and sealing of any order. The applicants' evidence was corroborated and uncontroverted by the 1st defendant, who filed no response despite being given 30 days.

p. 3
02

Whether the 3rd Defendant is an innocent party

Holding

He cannot benefit from innocence without explaining how he obtained the impugned order

Reasoning

Although the 3rd Respondent was not a party to the proceedings in HCCC No. 110 of 2005, he introduced the order obtained in that suit into these proceedings by his affidavit dated 26th February 2016, giving him the duty to explain its source. He failed to do so either in that affidavit or in his replying affidavit, and did not apply to cross-examine the Deputy Registrar. His remedy, if adverse orders issue, lies against the 1st defendant.

p. 3
03

Whether this Court can declare a document a forgery or cancel title without hearing witnesses

Holding

Yes - the Court has wide powers under Sections 1A, 1B, 3 and 3A to make orders necessary for the ends of justice and to prevent abuse of court process

Reasoning

The 3rd Respondent's submission that a land court cannot declare a document a forgery or cancel title without hearing witnesses was rejected as a wrong presumption of law. No witnesses could prove the existence of a suit whose file was never registered; the 1st defendant chose not to respond; the Deputy Registrar's uncontroverted evidence, as a judicial officer, admitted of no contrary conclusion; and a full hearing would be an academic exercise.

p. 4

Legal principles established

#
  • A party who introduces a court order into proceedings bears the duty to explain how he obtained it before claiming innocence
  • The court may declare a document a forgery and cancel title on the basis of uncontested affidavits without a full hearing, under its wide case-management powers

Court orders

#
  1. 1.The copy of the document annexed as FNC 8 (a) titled as vesting order issued on 17/7/2006 be and is hereby expunged from the further affidavit of the 3rd defendant dated 26.2.2016 as being a forgery
  2. 2.The registration of the 1st defendant as proprietor of the suit premises based on the non-existence order and the subsequent registration of the 3rd Defendant be and is hereby cancelled
  3. 3.The defences filed by the defendants is hereby ordered struck out and judgment entered for the plaintiff in terms of prayers (a) – (f) and (J) (K) of the plaint
  4. 4.The suit to proceed to formal proof as regards prayer (g), (m) & (n)
  5. 5.The costs of the application awarded to the plaintiff payable by the 1st defendant

Authorities

#

Legislation

  • Constitution of KenyaArticle 25(c)
  • Constitution of KenyaArticle 35(1)
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 159(2)(b)
  • Constitution of KenyaArticle 50
  • Civil Procedure Rules/ActSections 1A, 1B, 3 and 3A
Jurisdiction invoked
Articles 25(c), 35(1), 40, 47 & 159(2)(b) of the Constitution of Kenya and Sections 1A, 1B and 3A of the Civil Procedure Act/Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Firoza A. Jiwaji & another v Seleiman Mwinyi Ganyuma & 3 others [2018] KEELC 452 (KLR)", Case Analysis (2018). Mombasa HCCC No. 110 of 2005 (OS) referenced suit; application dated 8th September 2016 in the ELC suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/452/eng@2018-12-06

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