Yakobet Nechesa Wabuko v Humphrey Olwisi Muranda & another [2018] KEELC 1720 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Indefeasibility of title under the Land Registration Act and the fraud exception
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
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.
Re-litigation of issues already determined by a superior court
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
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.
Counterclaim and standard of proof
The counterclaim had no merit and was dismissed; the plaintiff had proved her case on a balance of probabilities
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.
Legal principles established
#- 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
#- 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.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.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.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.Costs of the suit to the plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.