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ELCPartially AllowedE.L.C. Civil Case No. 301 of 2010 (Consolidated with 369 of 2011)· [2018] KEELC 978 (KLR)

Tabitha Wothaya Ndigirigi v Mohammed Mutuku Mutisya Nzioki & 4 others [2018] KEELC 978 (KLR)

Environment and Land Court
11 October 2018
2,236 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, Tabitha Wothaya Ndigirigi, sued the 1st to 4th Defendants seeking revocation of the sale and transfer of L.R. No. 209/12734, cancellation of entries made without her consent, a permanent injunction, general damages, costs and interest. She alleged that her partners in Toika International Company, the 1st and 2nd Defendants, fraudulently transferred the suit property and the business name to the 3rd and 4th Defendants while she was hospitalised, forging her signature. The 5th Defendant, who had bought the property from the 3rd and 4th Defendants and registered it in 2011, had separately sued the plaintiff in E.L.C. Case No. 369 of 2011 for trespass, claiming special damages of Kshs. 2.5 million and an injunction; the two suits were consolidated. The plaintiff relied on the 2nd Defendant's conviction for forgery in Criminal Case No. 2777 of 2010. The advocate who conducted both conveyances testified unchallenged that the plaintiff willingly executed the sale agreement, transfer and business name transfer. The court framed a single issue: whose prayers should issue. It held that under Section 23 of the Registration of Titles Act the 5th Defendant's certificate of title was conclusive and indefeasible, and that no fraud or misrepresentation to which he was party was proved; his charge to CFC Stanbic Bank and the Registrar's caveat involved non-parties. The court found the plaintiff's recourse lay against her partners, and awarded her Kshs. 1.5 million (her 1/3 interest) and general damages of Kshs. 500,000 against the 1st and 2nd Defendants, with costs of ELC 301 of 2010; the 5th Defendant was denied costs of his suit. K. Bor J delivered the judgment on 11 October 2018 at Nairobi.

Key legal issues

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01

Whether the 5th Defendant's title could be impeached for fraud in the earlier transfer

Holding

No; the 5th Defendant was an innocent purchaser for value without notice whose title was indefeasible under Section 23 of the Registration of Titles Act

Reasoning

The court applied Section 23 of the Registration of Titles Act, under which a certificate of title is conclusive evidence of ownership and can only be challenged on fraud or misrepresentation to which the proprietor was proved to be a party. The Plaintiff led no evidence implicating the 5th Defendant in any fraud. The charge to CFC Stanbic Bank and the Registrar's caveat involved parties never joined to the suit.

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02

Whether the Plaintiff proved she did not participate in the sale to the 3rd and 4th Defendants

Holding

The court was not persuaded; the advocate who conducted the conveyance testified unchallenged that the Plaintiff executed the sale agreement and transfer forms, and no fraud finding was made against the 1st Defendant

Reasoning

Although the 2nd Defendant was convicted of forgery in Criminal Case No. 2777 of 2010, no fraud finding was made against the 1st Defendant. The advocate who drew and witnessed the sale agreement, transfer documents and the business name transfer testified that the Plaintiff willingly participated and provided her documents; his evidence was not challenged.

p. 2
03

What remedy, if any, the Plaintiff had against her co-owners

Holding

The Plaintiff's recourse lay against the 1st and 2nd Defendants as her partners in Toika International, and she was awarded Kshs. 1.5 million representing her 1/3 interest plus general damages of Kshs. 500,000

Reasoning

The Plaintiff held 1/3 of the Suit Property and the business name. Since the title of the 5th Defendant stood, the court assessed her entitlement against the 1st and 2nd Defendants based on the sale agreement between them as partners, awarding Kshs. 1.5 million and general damages of Kshs. 500,000 with costs against them.

p. 3

Legal principles established

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  • A certificate of title under the Registration of Titles Act is conclusive evidence of absolute and indefeasible ownership, subject only to challenge on fraud or misrepresentation to which the proprietor was a party
  • A party alleging disobedience of interim court orders must move the court for enforcement rather than raise it as a submission in the main suit

Court orders

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  1. 1.The 1st and 2nd Defendants to pay Tabitha Ndigirigi Kshs. 1.5 million, assessed based on her 1/3 interest in the Suit Property and Toika International Company
  2. 2.General damages of Kshs. 500,000 awarded to the Plaintiff against the 1st and 2nd Defendants
  3. 3.Costs of E.L.C. Case No. 301 of 2010 awarded to the Plaintiff against the 1st and 2nd Defendants
  4. 4.Costs of E.L.C. Case No. 369 of 2011 declined to the 5th Defendant in light of the findings in E.L.C. Case No. 301 of 2010
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (not expressly invoked in the judgment)

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, "Tabitha Wothaya Ndigirigi v Mohammed Mutuku Mutisya Nzioki & 4 others [2018] KEELC 978 (KLR)", Case Analysis (2018). E.L.C. Civil Case No. 301 of 2010 (Consolidated with 369 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/978/eng@2018-10-11

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