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ELCPartially AllowedELC Case No. 512 of 2017 (originally Nakuru High Court Civil Suit No. 240 of 1991)· [2018] KEELC 2259 (KLR)

Cecilia Nyambura Ndungu v Ol’kalou Farmers Co-operative Society [2018] KEELC 2259 (KLR)

Environment and Land Court
30 July 2018
MOM.C. Oundo
6,534 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land titles obtained while a lawsuit was pending, confirming that the first official allotment of land wins over later ones.

What this practically means

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Executive summary

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This first-instance judgment of the Environment and Land Court at Nyahururu (Oundo J) determined a long-running dispute over P.I No. 841 at Ol'Kalou Central Settlement Scheme, subdivided into parcels Nyandarua/Ol'Kalou Central/201, 912, 913 and 914. The Plaintiff, widow of David Ndungu Muga (later substituted after her death), claimed she and her husband were allotted the property in 1973 by the Settlement Fund Trustee, sought a declaration of absolute ownership, mesne profits, a perpetual injunction and costs. The Defendant society counterclaimed, asserting it was allotted the property in 1966 and seeking rectification of the register and vacant possession. The court found both parties held allotment documents - a double allotment attributable to the Settlement Fund Trustee - but applying the principle that the first allotment prevails, held the Defendant's 1966 allotment took priority. The court further found that on 4th October 2000, while the suit was pending and a status quo order was in force, the Plaintiff processed titles to all four subdivisions in her name, suppressing the Defendant's interest; this offended the doctrine of lis pendens and constituted acquisition illegally, unprocedurally or through a corrupt scheme under Section 26(1)(b) of the Land Registration Act. The titles were therefore impeachable, and the register was rectifiable under Section 80(1). The Plaintiff's suit was dismissed and judgment entered on the counterclaim: the register over parcels 912, 913 and 914 was ordered rectified by cancelling the Plaintiff's name and substituting the Defendant's, with the Plaintiff retaining parcel 201 (the main house). Each party was ordered to bear its own costs. Judgment dated and delivered at Nyahururu on 30th July 2018.

Key legal issues

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01

Whether the parties were allotted the suit premises

Holding

There was a double allotment of the suit land by the Settlement Fund Trustee, but the Defendant was the initial allottee (1966), so the later 1972/1973 allotment to the Plaintiff's husband was of property no longer available.

Reasoning

The Defendant produced a letter of offer dated 9th November 1966 with a certificate of acceptance dated 29th November 1966, opened loan account 999064/10 and repaid its loan. The Plaintiff's husband applied on 12th September 1972 and was approved on 21st February 1973. Applying the first-allotment-prevails rule, the Defendant's allotment prevailed and the later allotment was invalid.

p. 6
02

Whether the Plaintiff's registration as proprietor of the four titles was fraudulent

Holding

The Plaintiff's registration was fraudulent: she processed title deeds to all four subdivisions in her name on 4th October 2000 despite pending proceedings and a status quo order, suppressing the Defendant's interest.

Reasoning

Following the 21st January 1991 arbitration award and subdivision, the Plaintiff was aware of the pending suit and status quo order yet obtained titles to all four parcels without disclosing the Defendant's claim. Such dealing during the pendency of a suit offended the doctrine of lis pendens. Under Section 26(1)(b) of the Land Registration Act, titles acquired illegally, unprocedurally or through a corrupt scheme lose indefeasibility, and under Section 80(1) the register may be rectified for fraud or mistake.

p. 8
03

Who is entitled to the reliefs in the plaint and counterclaim

Holding

The Plaintiff's suit was dismissed and judgment entered for the Defendant on the counterclaim: rectification of the register cancelling the Plaintiff's name over parcels 912, 913 and 914 and substituting the Defendant's, with the Plaintiff retaining parcel 201.

Reasoning

The Defendant did not lay claim to parcel 201 (the main house), which the Plaintiff had occupied since about 1973, while the Defendant had occupied parcels 912, 913 and 914 since about 1964. Rectification was warranted for the three parcels the Plaintiff had fraudulently registered in her name despite the Defendant's prior allotment and possession.

p. 8

Legal principles established

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  • Where there is a double allocation of land, the first allotment prevails; there is no power to allot the same property again.
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge only on ground of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme.
  • A registered proprietor whose root of title is under challenge must go beyond the title instrument and prove the legality of the acquisition.
  • The doctrine of lis pendens strikes at dealings with suit property during the pendency of litigation intended to remove the subject matter from the court's power.
  • The court may order rectification of the register where a registration was obtained, made or omitted by fraud or mistake.

Court orders

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  1. 1.Dismissal of the Plaintiff's case
  2. 2.Judgment entered in favour of the Defendant on the counter-claim
  3. 3.An order for rectification of the register in respect of land parcels No. Nyandarua/Ol'Kalou Central/912, 913 and 914 by cancellation of the Plaintiff's name and substituting same with the Defendant's
  4. 4.Each party to bear own costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80(1)
  • Land ActSection 162(1)
  • Registered Land Act (Repealed)Section 163
  • Transfer of Property Act, 1882 (Repealed)Section 52

Cases cited (6)

  • M'Ikiara M'Rinkanya & Another -v- Gilbert Kabeere M'Mbijiwe
    (1982-1988) 1 KAR 196
  • Kariuki -v- Kariuki
    (1982-88) KAR 26/79
  • Otieno and Matsanga
    (2003) KLR 210
  • Munyu Maina vs. Hiram Gathiha Maina
    [2013] eKLR
  • Re Estate of Solomon Muchiri Macharia
    [2016] eKLR
  • Rajender Singh & Ors. vs. Santa Singh & Ors.
    AIR 1973 SC 2537
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit transferred from the High Court at Nakuru pursuant to the transfer of proceedings to the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Cecilia Nyambura Ndungu v Ol’kalou Farmers Co-operative Society [2018] KEELC 2259 (KLR)", Case Analysis (2018). ELC Case No. 512 of 2017 (originally Nakuru High Court Civil Suit No. 240 of 1991). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2259/eng@2018-07-30

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