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ELCPartially AllowedELC Case No. 655 of 2017 (formerly Machakos ELC Case No. 304 of 2009)· [2018] KEELC 1486 (KLR)

Beatrice Wairimu Githii v Peter Gachenga Kimuhu & 2 others [2018] KEELC 1486 (KLR)

Environment and Land Court
9 October 2018
2,373 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 sued for rectification of the land register over LR No. Kajiado/Kitengela/11080, which she had purchased from Mugumo Estates Limited in 2001 and for which she held the original title deed. She discovered the register had been changed following a transfer purportedly executed by one 'Beatrice Wairimu Gitahi' (a variation of her own name) to the 1st Defendant in November 2008, who then transferred the land to the 2nd Defendant in April 2009. The 1st and 2nd Defendants failed to attend the hearing despite service. The Land Registrar (3rd Defendant) testified that no transfer documents between Gitahi and the 1st Defendant could be traced, and that it was anomalous that the Plaintiff still held the original title deed. The court framed five issues and held that there was no lawful transfer from the Plaintiff to the 1st Defendant, that the 1st Defendant had no good title to pass to the 2nd Defendant, and that the 3rd Defendant had not colluded, having registered a restriction over the land pending resolution. Relying on Samuel Kamere, Arthi Highway Developers and Alice Chemutai Too, and on Section 80 of the Land Registration Act, the court found the Plaintiff had proved her case on a balance of probabilities. The court declared the Plaintiff the lawful proprietor, declared the transfer to the 2nd Defendant null and void ab initio, directed the Land Registrar to cancel the 2nd Defendant's title and rectify the register in the Plaintiff's favour, and awarded costs against the 1st and 2nd Defendants.

Key legal issues

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01

Whether there was a lawful transfer of the suit land from the Plaintiff to the 1st Defendant

Holding

There was no valid transfer; the 1st Defendant failed to produce any documents proving the transaction, and the Plaintiff still held the original title deed

Reasoning

The Plaintiff produced her original title deed, consent, transfer form and receipt proving her 2001 acquisition from Mugumo Estates Limited. The Land Registrar could not trace transfer documents and confirmed that an original title deed must be surrendered upon sale, yet the Plaintiff retained hers. The 1st and 2nd Defendants did not testify despite service. Applying Samuel Kamere, the 1st Defendant failed to discharge the evidentiary burden of proving the root of his title.

p. 2
02

Whether the 1st Defendant had a good title to pass to the 2nd Defendant

Holding

No; a fraudulent or void root of title cannot pass good title to a subsequent purchaser

Reasoning

Having found the transfer to the 1st Defendant was fraudulent and invalid, the court applied Arthi Highway Developers to hold that no valid title passed to the 1st Defendant and therefore none could pass to the 2nd Defendant, who took a title derived from that fraudulent transfer.

p. 3
03

Whether the 3rd Defendant colluded with the 1st and 2nd Defendants to fraudulently effect the transfer

Holding

No collusion by the 3rd Defendant was established

Reasoning

The Land Registrar testified that transfer documents could not be traced and that it was the 1st Defendant who presented the documents. The Registrar registered a restriction over the suit land on 12th June 2009 pending resolution of the complaint, which the court found inconsistent with collusion.

p. 3
04

Whether the Plaintiff is entitled to cancellation of the title and rectification of the register

Holding

Yes; the Plaintiff, having acquired the land legally and without knowledge of the fraud, is entitled to rectification under Section 80 of the Land Registration Act

Reasoning

The court found the Plaintiff's land was fraudulently taken by the 1st and 2nd Defendants without her knowledge. Section 80 permits rectification where registration was obtained by fraud or mistake, and the proviso protecting an innocent proprietor did not apply to the fraudulent Defendants. The Plaintiff had proved her case on a balance of probabilities.

p. 3

Legal principles established

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  • A party who cannot show the root of a purported title cannot acquire title to suit property upon registration of a transfer unsupported by documents
  • No fraudster nor beneficiary of fraudulent activities stands to gain from fraud, and a holder of a good title will not be deprived of it by tricksters
  • Where no valid title passes to a fraudulent transferee, no good title can pass to subsequent purchasers
  • The court may order rectification of the register where a registration was obtained or made by fraud or mistake, subject to the protections of Section 80(2) of the Land Registration Act

Court orders

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  1. 1.A declaration that Beatrice Wairimu Githii is the legal proprietor of Land Parcel Title No. Kajiado/Kitengela/11080
  2. 2.A declaration that the transfer of the title deed over LR Number Kajiado/Kitengela/11080 to Joel Atuti Nyambaka is invalid, null and void ab initio
  3. 3.The Land Registrar Kajiado directed to recall, revoke, cancel and/or nullify the Title Deed issued to Joel Atuti Nyambaka on 28th April 2009 for land parcel number Kajiado/Kitengela/11080
  4. 4.The Land Registrar Kajiado directed to rectify the records and/or register at the Lands Registry, Kajiado, cancelling the entry of Joel Atuti Nyambane and rectifying it to read Beatrice Wairimu Githii as registered proprietor
  5. 5.Costs of the suit awarded to the Plaintiff, to be borne by the 1st and 2nd defendants

Authorities

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Legislation

  • Land Registration ActSection 80(1) and (2)

Cases cited (9)

  • Alice Chemutai Too Vs Nickson Kipkurui Korir & 2 others
    (2015) eKLR
  • Samuel Kamau Macharia Vs. Ali Khan Ali Muses & 2 others
    (2014) eKLR
  • Samuel Kamere Vs Lands Registrar, Kajiado
    (2015) eKLR
  • Munyu Maina Vs Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009
  • Elijah Makeri Nyangwara Vs Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Arthi Highway Developers Limited Vs West End Butchery Limited & 6 others
    (2015) eKLR
  • Charles Gathuma Munge Versus Peter Icharia Munge & Ichamu Investments Ltd
    ELC Civil Suit No. 1189 of 2007
  • Ratilal Gordhanbhai Patel Vs Lalji Makanji
    (1957) EA 314
  • Koinange & 13 Others Vs Koinange
    (1986) KLR 23
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; rectification of register under Section 80 of the Land Registration Act

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, "Beatrice Wairimu Githii v Peter Gachenga Kimuhu & 2 others [2018] KEELC 1486 (KLR)", Case Analysis (2018). ELC Case No. 655 of 2017 (formerly Machakos ELC Case No. 304 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1486/eng@2018-10-09

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