Nkwengo Consolata Mission Church (Suing thro’ the Catholic Diocese of Meru Registered Trustees) v Registered Trustees of the Presbetyrian Foundation & 5 others [2018] KEELC 1578 (KLR)
The bottom line
#A Kenyan court cancelled a land title obtained while an appeal over the same land was pending, ruling the transfer fraudulent and returning one acre to the Catholic parish.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved fraud in the transfer and registration of the suit parcel to the 1st defendant
The court found the transfer during the pendency of the plaintiff's appeal was fraudulent and unlawful, hence null and void
The plaintiff had obtained judgment in its favour (Meru HCCA No. 65 of 2002/2007) awarding it one acre. While that appeal was pending, the defendants caused the entire parcel to be registered in the name of the 1st defendant, depriving the plaintiff of the fruits of its judgment. The court treated this timing as proof of fraud on a balance of probabilities and attributed participation to the 1st, 2nd, 3rd and 5th defendants.
Whether the plaintiff was entitled to cancellation of the 1st defendant's title, rectification of the register, resurvey and transfer of one acre
Yes - the court granted all the substantive prayers in the plaint, including cancellation of title, rectification of entries Nos. 1-5, resurvey, demarcation and transfer of one acre to the plaintiff
Having found fraud, the court granted declarations, cancellation of the title issued on 15th June 2005, rectification of the register (entry No. 1 to read Tharaka County Council/County Government of Tharaka Nithi), resurvey and demarcation of the one acre, and empowered the Deputy Registrar to execute documents if the defendants defaulted.
Whether the suit against the Attorney General and statutory bodies was barred by limitation
No - leave to file suit out of time had been properly granted, defeating the limitation objection raised in cross-examination
Counsel for the 1st and 2nd defendants cross-examined PW1 on the suit having been filed over three years after the alleged fraud. PW1 rebutted this by producing the court order of the Hon. J. A. Emukule, J granting leave to file suit out of time against the Attorney General, the Commissioner of Lands and the Chief Land Registrar.
Legal principles established
#- Registration of land in the name of a third party during the pendency of litigation over that land, to defeat a judgment already obtained, is fraudulent conduct
- A plaintiff asserting fraud against a title discharges the burden on a balance of probabilities where the fraudulent conduct and the participants are identified
Court orders
#- 1.Declaration that a one-acre portion of L.R. No. Karingani/Gitareni/929 (the judgment also writes 729) is rightly the property of the plaintiff and not available for issuance of title to any other party
- 2.Declaration that the purported transfer and registration of the parcel into the names of the 1st defendant was fraudulent, unlawful and null and void
- 3.Cancellation of the title deed issued to the 1st defendant on or about 15th June 2005
- 4.Rectification of the register in respect of entry No. 1 to read Tharaka County Council or the County Government of Tharaka Nithi instead of Meru County Council
- 5.Rectification of the register in respect of entries Nos. 2, 3, 4 and 5 dated 20.5.2002, 27.5.2005, 4.6.2005 and 15.6.2005
- 6.Order directing the 4th and 5th defendants to resurvey the parcel and demarcate one acre to the plaintiff with a title issued to the plaintiff forthwith
- 7.1st, 2nd, 4th and 5th defendants ordered to sign all documents to effect subdivision and transfer, and in default the Deputy Registrar empowered to execute them
- 8.Costs to the plaintiff against the 1st, 2nd, 3rd, 5th and 6th defendants with interest at court rates from the date of judgment
- Jurisdiction invoked
- Original civil suit on land title and rectification of register under the land registration statutes; leave to sue statutory bodies out of time previously granted in Meru HCC Misc. Application No. 21 of 2008
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nkwengo Consolata Mission Church (Suing thro’ the Catholic Diocese of Meru Registered Trustees) v Registered Trustees of the Presbetyrian Foundation & 5 others [2018] KEELC 1578 (KLR)", Case Analysis (2018). Not stated in the extract ( merits judgment after Further Amended Plaint dated 4th December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1578/eng@2018-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.