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ELCPartially AllowedKisumu ELC Case (plaint dated 4th June 2009)· [2018] KEELC 454 (KLR)

Samuel Odhiambo Oludhe & 2 others v Jubilee Jumbo Hardware Limited & another [2018] KEELC 454 (KLR)

Environment and Land Court
5 December 2018
MOM. A. ODENY
4,071 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kisumu court cancelled a land title bought from someone with no real ownership, proving fraudulent land deals in Kenya can be undone.

What this practically means

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Executive summary

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By a plaint dated 4th June 2009 the plaintiffs, sons and administrators of the estate of Jackson Oludhe Aloo (who died on 4th May 1998 as registered owner of Kisumu/Municipality/Block 4/92), sought rectification of the register, eviction of the 1st defendant, damages for trespass, mesne profits and costs. They proved, through the original Certificate of Lease and letters of administration, that the deceased never transferred the property in his lifetime, and that the property was purportedly transferred on 21st July 2007 to Bruno Peter Amoko, who sold it to the 1st defendant by agreement dated 29th September 2008. The 1st defendant itself lodged a criminal complaint against Amoko for making a document without authority, and the plaintiffs testified the 1st defendant's director later sought to regularise the transaction. The 1st and 2nd defendants tendered no evidence, the 1st defendant relying only on written submissions claiming bona fide purchaser status. The court held that the 1st defendant neither gave evidence nor proved the ingredients of a bona fide purchaser, and that under Section 26(1)(b) of the Land Registration Act a title procured illegally, unprocedurally or through a corrupt scheme is impeachable even against an innocent title holder. Relying on the Makeri Nyangw, Alice Chemutai Too and Arthi Highway Developers line of authorities, the court ordered rectification of the register, eviction of the 1st defendant within 30 days, general damages for trespass of Kshs. 500,000/- (trespass being actionable per se) and costs. The claim for mesne profits failed as unproved special damage. Judgment was delivered at Kisumu on 5th December 2018 by M. A. Odény J.

Key legal issues

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01

Whether the 1st defendant's title was fraudulently/illegally procured and thus liable to be impeached

Holding

Yes. The property belonged to the deceased plaintiffs' father, was never transferred by him, and was purportedly transferred after his death through a forged certificate of lease; the 1st defendant gave no evidence to prove bona fide purchase.

Reasoning

The plaintiffs produced the original title and letters of administration; the deceased never transferred the land while alive. The transfer to Bruno Peter Amoko occurred after death and the certificate of lease he used was itself the subject of forgery charges. The 1st defendant filed submissions only, tendered no evidence, and failed to prove the ingredients of a bona fide purchaser or discharge its burden under Section 112 of the Evidence Act.

p. 4
02

Whether the register should be rectified and the 1st defendant evicted

Holding

Yes. Section 80(1) of the Land Registration Act empowers rectification where registration was obtained by fraud or mistake.

Reasoning

The court found the transaction suspect since the intermediary, Bruno Peter Amoko, had no title capable of passing to the 1st defendant, who had even attempted to regularise the transaction. The court aligned itself with Munyao J's interpretation of Section 26(1)(b) protecting real title holders, and exercised its power under Section 80(1) to rectify the register and order eviction.

p. 4
03

Whether the plaintiffs were entitled to general damages for trespass and mesne profits

Holding

General damages for trespass awarded at Kshs. 500,000/- as trespass is actionable per se; mesne profits refused for want of pleading and proof.

Reasoning

Relying on Park Towers Ltd v John Mithamo Njika, once trespass is proved no specific damage need be shown. However, mesne profits being special damage had to be specifically pleaded and proved, and no evidence was led on that head, so it failed.

p. 5

Legal principles established

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  • A title procured illegally, unprocedurally or through a corrupt scheme is impeachable under Section 26(1)(b) of the Land Registration Act even against an innocent titleholder who was not party to the fraud
  • Trespass to land is actionable per se, without proof of specific damage
  • Mesne profits are special damages which must be specifically pleaded and proved

Court orders

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  1. 1.A rectification of the register with regard to property known as Title no. Kisumu/Municipality/Block 4/92
  2. 2.An order of eviction of the 1st defendant and demolition of any illegal structures in the suit property within 30 days
  3. 3.Damages for trespass of Kshs. 500,000/
  4. 4.Costs of the suit

Authorities

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Legislation

  • Penal CodeSection 357(a); Section 313
  • Constitution of Kenya, 2010Article 40; Article 40(6)
  • Land Registration ActSection 26; Section 26(1)(b); Section 25; Section 80(1)
  • Evidence ActSection 112
  • Registered Land Act (repealed)Section 143(1)
  • Registration of Titles Act (repealed)Section 23(1)

Cases cited (13)

  • Evanson Wambugu Gachugi –Vs- Simon Wainaina Gatwiki & 2 Others
    [2014] eKLR
  • Republic –vs- Minister for Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others
    Mombasa HCMCA No. 617 of 2003 [2006] 1 KLR (E&L) 563
  • Kenya National Highway Authority – vs – Shalien Masood Mughal & 5 Others
    [2017] eKLR
  • Alberta Mae Gacci – vs – Attorney General & 4 Others
    (2006) eKLR
  • Sai Office Supplies Limited –vs- Rosemary Alivista Luseno & Another
    [2014] eKLR
  • Kenya Hotel Properties Ltd –Vs- Willesden Investment Ltd
    (2009) eKLR
  • Elijah Makeri Nyangw –vs- Stephen Mungai Njuguna & Another
    [2013] eKLR
  • Chemei Investments Limited –vs- The Attorney General & Others
    Nairobi Petition No. 94 of 2005
  • Milan Kumar Shah & 2 Others –vs- City Council of Nairobi & Another
    null
  • Arthi Highway Developers Limited –Vs- West End Butchery Limited and Others
    Civil Appeal No. 246 of 2013
  • Dr. Joseph Arap Ngok –Vs- Justice Moijo Ole Keiwua & 5 Others
    Nai. Civil Appeal No. 60 of 1997
  • Alice Chemutai Too –Vs- Nickson Kipkurui Korir & 2 Others
    [2015] eKLR
  • Park Towers Ltd v. John Mithamo Njika & 7 others
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Land Registration Act, 2012 (Sections 26 and 80(1)) and Article 40 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samuel Odhiambo Oludhe & 2 others v Jubilee Jumbo Hardware Limited & another [2018] KEELC 454 (KLR)", Case Analysis (2018). Kisumu ELC Case (plaint dated 4th June 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/454/eng@2018-12-05

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