Itumu Mbutei v Ireri Njeru & another [2018] KEELC 675 (KLR)
The bottom line
#The Environment and Land Court cancelled a fraudulently obtained land title and returned the property to its rightful Embu owner.
What this practically means
#Executive summary
#Key legal issues
#Fraudulent registration of the 2nd Defendant as proprietor
The 1st Defendant, as chairman of the house during adjudication, fraudulently caused his minor son to be registered in place of the Plaintiff; knowledge of the fraud is imputed to the 2nd Defendant
The court believed the Plaintiff and elders that the suit property had been allocated to the Plaintiff. The 1st Defendant was instrumental in the allocations for his house and abused that position. The government did not allocate clan land; elders and heads of houses did. A minor cannot incur liability, so the fraud of the father, who engineered the registration, was imputed to the 2nd Defendant.
Adverse possession claim
Claim failed; no exclusive possession and the statutory 12-year period was not established
The 2nd Defendant built a brick house and conducted business on part of the land while the Plaintiff cultivated another portion, so possession was not exclusive. Registration occurred in 1996 and the suit was filed in 2004, less than 12 years later, following Kasuve v Mwaani Investments Ltd.
Claim under Embu customary rights
Not tenable because the customary law was not proved as a fact
Under section 51 of the Evidence Act, the existence and content of African customary law is a question of fact requiring evidence. No such evidence was adduced. Moreover, the land had gone through adjudication and registration, so the viable remedy was rectification of the register.
Rectification of the register
Rectification ordered under section 80 of the Land Registration Act, 2012
The court found as a fact that the Plaintiff was defrauded. Section 80 permits rectification where registration was obtained by fraud or mistake. Knowledge of and participation in the fraud was attributable to the 1st Defendant and imputed to the 2nd Defendant, a minor acting only through a guardian.
Legal principles established
#- A court may order rectification of the register where a registration was obtained by fraud or mistake
- Failure to inspect the published adjudication register does not excuse a person who defrauds another of land allocated to them
Court orders
#- 1.The Land Registrar, Mbeere to rectify the land register by cancelling the registration of the 2nd Defendant as proprietor of Title No. Embu/Gangara/764 and substituting the name of the Plaintiff, Itumu Mbutei, forthwith.
- 2.A permanent injunction issued against the Defendants restraining them, their agents or servants from trespassing upon and interfering with the Plaintiff's user, enjoyment and possession of the suit property.
- 3.The Defendants' counterclaim dismissed in its entirety.
- 4.Each party to bear his own costs.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over ownership, title and rectification of land registered under the Land Registration Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Itumu Mbutei v Ireri Njeru & another [2018] KEELC 675 (KLR)", Case Analysis (2018). E.L.C. Case No. 146 of 2015 (Formerly HCCC No. 59 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/675/eng@2018-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.