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ELCAllowedELC Case No. 50 of 2016· [2018] KEELC 1720 (KLR)

Yakobet Nechesa Wabuko v Humphrey Olwisi Muranda & another [2018] KEELC 1720 (KLR)

Environment and Land Court
26 September 2018
1,951 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land title transferred to a wife while appeals were pending, ruling the transfer was fraudulent and gave no protection.

What this practically means

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Executive summary

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The plaintiff, legal administratrix of the estate of her late husband Moses Wabuko Misiko, claimed that her husband purchased land parcel Marama/Shianda/126 from Muranda Anyonje in 1975 and took possession, and that a decree issued in her favour in Kakamega CMC Misc. Award No. 38 of 2002 was upheld after the 1st defendant's appeals to the High Court and Court of Appeal were dismissed or struck out. While those appeals were pending, the 1st defendant transferred the suit land to his wife, the 2nd defendant, allegedly to defeat the decree. The plaintiff sought a declaration that the transfer of 24th January 2006 was unlawful, cancellation of the 2nd defendant's title, transfer of the land to herself in execution of the decree, eviction of the defendants, and costs. The defendants denied the sale, asserted the 2nd defendant's indefeasible title under the Land Registration Act and the repealed Registered Land Act, and contended the claim was time barred, that parties were misjoined, that there was no privity, and that the award was made by a tribunal without jurisdiction. The court, applying sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra decision, held that title can be challenged where acquired illegally, unprocedurally or through a corrupt scheme. It found the transfer fraudulent because the 1st defendant knew appeals were pending, held the defendants could not reopen issues already decided by a superior court, and dismissed the counterclaim. All the principal reliefs were granted, with three months given to vacate and costs to the plaintiff.

Key legal issues

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01

Indefeasibility of title under the Land Registration Act and the fraud exception

Holding

The 2nd defendant's title was not protected because the transfer to her was fraudulent, being effected by the 1st defendant while appeals were pending, and title acquired illegally, unprocedurally or through a corrupt scheme is challengeable under section 26(1) of the Land Registration Act

Reasoning

The court set out sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor but permit challenge on proof of fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. Relying on Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another, the court held a title in the hands of an innocent third party can still be impugned if obtained through such means. The court found the transfer was made with knowledge of pending appeals, amounting to fraud designed to defeat the decree in the plaintiff's favour.

p. 2
02

Re-litigation of issues already determined by a superior court

Holding

The defendants, including the 1st defendant whose appeals had all been dismissed or struck out, could not reopen the question of the alleged sale and jurisdiction of the tribunal that made the award in Kakamega CMC Misc. Award No. 38 of 2002

Reasoning

The court noted that the 1st defendant did not dispute that all his appeals to the High Court and the Court of Appeal were dismissed in favour of the plaintiff. His contention that the tribunal lacked jurisdiction and that no sale agreement existed could not reopen matters already adjudicated by a superior court. The prior decisions thus formed the foundation for ordering the land to be transferred into the plaintiff's name as decreed in Kakamega CMCC Misc. Award No. 38 of 2002.

p. 2
03

Counterclaim and standard of proof

Holding

The counterclaim had no merit and was dismissed; the plaintiff had proved her case on a balance of probabilities

Reasoning

The court assessed the evidence and submissions, finding the plaintiff had proved her claim to the civil standard. The defendants' assertion that the 2nd defendant was the rightful registered owner was defeated by the finding of fraud, and the counterclaim was dismissed. The court then granted the declaratory, cancellation, transfer, and eviction orders sought, plus costs, granting the plaintiff substantially all the relief claimed in the plaint.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, but it is not subject to challenge except on the ground of fraud or misrepresentation to which the proprietor is proved to be a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • Issues already adjudicated and decided by a superior court cannot be reopened between the same parties
  • A transfer of land effected with knowledge of pending litigation concerning that land, with intent to defeat the outcome, is fraudulent and may be set aside

Court orders

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  1. 1.An order declaring that the transfer of land parcel Marama/Shianda/126 as per entry No. 5 in the register extract (Green Card) was unlawful and should be cancelled and the land reverts into the name of the 1st defendant
  2. 2.An order directing the 2nd defendant to surrender the title deed for land parcel Marama/Shianda/126 to the Land Registrar Kakamega for cancellation
  3. 3.An order that upon cancellation and reverting into the name of the 1st defendant, the same shall be cancelled and the land transferred into the name of the plaintiff as decreed in Kakamega CMCC Misc. Award No. 38 of 2002
  4. 4.The defendants to vacate the suit land, land parcel No. Marama/Shianda/126 within the next 3 (three) months from the date of judgment and in default an eviction order to issue forthwith
  5. 5.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Land Registration Act, 2012Section 26
  • Registered Land Act (repealed)Sections 27 and 28

Cases cited (1)

  • Elijah Makeri Nyangw'ra -vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (as the court seized of the land dispute); the claim sought cancellation of a fraudulent transfer of land parcel Marama/Shianda/126

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, "Yakobet Nechesa Wabuko v Humphrey Olwisi Muranda & another [2018] KEELC 1720 (KLR)", Case Analysis (2018). ELC Case No. 50 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1720/eng@2018-09-26

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