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ELCDismissedELC Case No. 42 of 2017· [2018] KEELC 1178 (KLR)

Mary Muthoni Njoroge v Joseph Wachira Nderitu & another [2018] KEELC 1178 (KLR)

Environment and Land Court
19 October 2018
LGL. Gacheru
3,538 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a land fraud claim because the plot's current owner was never joined to the case and the fraud was not strictly proved.

What this practically means

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Executive summary

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The Plaintiff, Mary Muthoni Njoroge, sued her son, the 1st Defendant, and Kyanjau Co-operative Society, the 2nd Defendant, seeking revocation of the transfer of residential plot No. 208 and reversion of proprietorship to herself. She alleged that in 1993 her son colluded with employees of the 2nd Defendant to fraudulently transfer the plot, and that she discovered the fraud only in May 2012 when her son wrote a letter admitting it. The 2nd Defendant denied the fraud, contending the Plaintiff herself signed the transfer, that the plot had since passed through four subsequent owners and was now registered land, and raised a Preliminary Objection that the suit was time barred under Section 7 of the Limitation of Actions Act. The 1st Defendant did not enter appearance and interlocutory judgment was entered against him. The court first held that the suit was not time barred because, being founded on fraud, time ran from discovery in 2012, and dismissed the Preliminary Objection with no orders as to costs. On the merits, however, the court found that fraud must be strictly proved to a standard above a balance of probabilities; the alleged admission was untested, no criminal charges were preferred against the 1st Defendant, and no complicity of the 2nd Defendant's officials was shown. Further, the plot had been registered under the Land Registration Act and transferred to Jolivima Enterprises Ltd, a non-party, and the Land Registrar was not joined; ordering revocation would condemn unheard parties contrary to natural justice. The Plaintiff having failed to prove her case on a balance of probabilities, the suit was dismissed entirely, with each party bearing their own costs in view of the family relationship and the Plaintiff's advanced age.

Key legal issues

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01

Limitation - whether the suit is time barred

Holding

The Preliminary Objection on limitation fails because the claim is founded on alleged fraud discovered in 2012, so time runs from discovery

Reasoning

The transfer occurred in 1993 and the suit was filed in 2016, which would ordinarily exceed the twelve-year period in Section 7 of the Limitation of Actions Act. However, the Plaintiff's claim is based on fraud, and in fraud cases time begins to run from discovery of the fraud. Since the Plaintiff alleged discovery in 2012, the suit filed in 2016 was within time, and the Preliminary Objection was dismissed with no orders as to costs.

p. 4
02

Proof of fraud

Holding

The Plaintiff failed to prove the alleged fraud to the required standard

Reasoning

Fraud must be strictly proved to a standard above a balance of probabilities. Although the 1st Defendant allegedly admitted forgery in a letter of 31st May 2012, he never entered appearance or filed a defence, he was never charged with forgery, and there was no evidence that officials of the 2nd Defendant were involved. The allegation of fraud therefore was not proved to the required standard.

p. 3
03

Whether revocation of title can be ordered against a non-party

Holding

The Court cannot revoke the registration now held by Jolivima Enterprises Ltd, a non-party, nor direct the Land Registrar who was not joined

Reasoning

The suit property was registered under the Land Registration Act in 2014 and later transferred to Jolivima Enterprises Ltd, which is not a party to the suit. Revocation of a fraudulently acquired title is a remedy under Section 80(1) of the Land Registration Act exercisable by the court, and any order would have to be effected by the Land Registrar, who was also not a party. Issuing such orders without hearing the affected parties would breach natural justice, and courts do not issue orders in vain.

p. 4

Legal principles established

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  • Allegations of fraud must be strictly proved to a standard higher than a balance of probabilities though not beyond reasonable doubt
  • In cases of fraud, limitation time runs from discovery of the fraud
  • A court should not issue orders affecting a party who is not enjoined and has not been heard
  • The absolute and indefeasible proprietorship of a registered owner under the Land Registration Act can be challenged only on fraud, misrepresentation or corrupt practices

Court orders

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  1. 1.The Notice of Preliminary Objection is dismissed entirely with no orders as to costs
  2. 2.The Plaintiff's suit is dismissed entirely
  3. 3.Each party to bear his/her or its own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Land Registration ActSections 24(a), 25(1), 26(1), 26(1)(a)&(b), 80(1)
  • Civil Procedure ActSection 27

Cases cited (4)

  • Peter Chepkochoi Mitei v Esther Jelagat Ng'eny & 3 Others
    (2014) eKLR
  • Richard Oduol Opole v The Commissioner of Lands & 2 Others
    Court of Appeal at Kisumu, Civil App. No. 285 of 2007; (2015) eKLR
  • R.G Patel v Lalji Makanji
    (1957) EA 314; (1957) EA 315
  • Pashito Holdings & Another v Ndungu & 2 Others
    Civil Appeal No. 138 of 1997
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to ownership of land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mary Muthoni Njoroge v Joseph Wachira Nderitu & another [2018] KEELC 1178 (KLR)", Case Analysis (2018). ELC Case No. 42 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1178/eng@2018-10-19

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