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ELCPartially AllowedELC Case No. 187 of 2013· [2018] KEELC 745 (KLR)

Maliko Akule Musa v Miriam Kalenya Kihonzi & another [2018] KEELC 745 (KLR)

Environment and Land Court
22 November 2018
NMN.A. Matheka
970 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled land registrations obtained by fraud, restoring the original owner's title after decades of ownership.

What this practically means

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Executive summary

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The plaintiff, registered owner of L.R. KAKAMEGA/IGUHU/1258 since 9/10/1976, sued his two daughters, the defendants, seeking cancellation of their registration as joint proprietors effected on 19/12/2008 and issuance of a fresh title deed to him, together with costs and interest. He alleged the defendants fraudulently deregistered him. In evidence he produced the title deed, green card and a transfer form which he said was forged, with a photo that was not his. The defendants, in their statement of defence, contended the land had been donated to their mother by her sister and that the plaintiff never contributed to its acquisition; they gave no oral evidence but submitted through counsel that they were willing to give up the land if not saddled with costs. The court applied sections 24(a) and 26(1) of the Land Registration Act on vesting of absolute ownership and the indefeasibility of a certificate of title, subject to challenge for fraud or corrupt acquisition, and adopted the reasoning in Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another (2013) eKLR. Finding the transfer fraudulent on a balance of probabilities - the plaintiff never consented or signed, and the defendants offered no evidence to the contrary - the court cancelled the 19/12/2008 registration, ordered issuance of a title deed to the plaintiff, and awarded him costs, rejecting the defendants' request to be excused from costs.

Key legal issues

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01

Fraudulent transfer of registered land

Holding

The defendants fraudulently transferred the plaintiff's land into their joint names; the transfer was cancelled

Reasoning

The plaintiff was registered owner from 9/10/1976 until 19/12/2008 when the defendants were registered as joint proprietors. The plaintiff gave uncontroverted evidence that he never gave consent nor signed transfer documents, and the photo on the transfer form was not his. The defendants gave no oral evidence and offered nothing to disprove fraud. His case was proved on a balance of probabilities.

p. 2
02

Indefeasibility of title under the Land Registration Act

Holding

Title is protected but challengeable on fraud to which the proprietor is a party or where acquired illegally, unprocedurally or through a corrupt scheme

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, relying on Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna, that title in the hands of a party can be impugned where obtained by fraud, misrepresentation, or illegally, unprocedurally or through a corrupt scheme. The pleaded and proved fraud displaced the defendants' indefeasible title.

p. 2

Legal principles established

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  • Registration vests absolute ownership of land in the registered proprietor
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or corrupt acquisition

Court orders

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  1. 1.Cancellation of the registrations made on 19/12/2008 of the 1st and 2nd defendants as joint proprietors of L.R. KAKAMEGA/IGUHU/1258 and subsequent issuance of a title deed to the plaintiff
  2. 2.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)

Cases cited (1)

  • Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes

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, "Maliko Akule Musa v Miriam Kalenya Kihonzi & another [2018] KEELC 745 (KLR)", Case Analysis (2018). ELC Case No. 187 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/745/eng@2018-11-22

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