Firoza A. Jiwaji & another v Seleiman Mwinyi Ganyuma & 3 others [2018] KEELC 452 (KLR)
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
#Key legal issues
#Existence and authenticity of the impugned vesting order
The order is a forgery since no such suit was ever registered in HCCC No. 110 of 2005 (OS)
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.
Whether the 3rd Defendant is an innocent party
He cannot benefit from innocence without explaining how he obtained the impugned order
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.
Whether this Court can declare a document a forgery or cancel title without hearing witnesses
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
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.
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.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.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.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.The suit to proceed to formal proof as regards prayer (g), (m) & (n)
- 5.The costs of the application awarded to the plaintiff payable by the 1st defendant
- 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.