Benedict Munialo Khaoya v Gabriel Mahindi Wasike & 2 others [2018] KEELC 2301 (KLR)
The bottom line
#A Kenyan court cancelled a fraudulent land transfer, ordered the land returned to the buyer, and made the fraudulent transferees pay the legal costs.
What this practically means
#Executive summary
#Key legal issues
#Enforceability of the agreement transferring parcel No. 3126 to the Plaintiff
The agreement signed by the 1st defendant and counter-signed by the Senior Assistant Chief was valid and enforceable under the pre-2003 Section 3(3) of the Law of Contract Act, and the Plaintiff who performed his part could not be deprived of the land
The court traced the agreement produced as PEX.3, signed by both parties and counter-signed by Patrick Mulat, Senior Assistant Chief. The transaction occurred in 1994, before the 2003 amendment to Section 3(3) of the Law of Contract Act, when part performance and possession sufficed even absent full writing. The agreement was signed by the party to be charged. The evidence was uncontroverted and supported by the 1st defendant's own son, DW1, who confirmed his father's intention to compensate the Plaintiff.
Fraud in the transfer of parcel No. 3126 and creation of parcel No. 3806
The transfer of parcel No. 3126 to the 2nd and 3rd defendants and its combination with parcel No. 3125 to form parcel No. 3806 was fraudulent; all defendants had knowledge and cannot claim to be innocent purchasers for value without notice
The Plaintiff had placed a restriction on the land on 17th April 2001 which was removed on the basis of a letter from a Chief, without the Plaintiff's involvement - which the court held was clear evidence of fraud. The transfer occurred while a caution subsisted and litigation pending. The title to parcel No. 3806 issued to the 2nd and 3rd defendants on 28th March 2002 was thus fraudulently procured and fell for cancellation under Sections 143 of the Registered Land Act and 80 of the Land Registration Act.
Equity and unjust enrichment
The 1st defendant, by transferring land developed by the Plaintiff on the understanding it would be transferred to him, was unjustly enriching himself and equity would not allow it
The Plaintiff redeemed parcel No. 1132 from financers and developed it by putting up two shops, on the 1st defendant's promise to cede half. The court, as a court of both law and equity, refused to look aside while the 1st defendant defeated the Plaintiff's expectation by transferring parcel No. 3126 to the 2nd and 3rd defendants.
Legal principles established
#- A registration obtained through fraud may be cancelled by the court under both the repealed Registered Land Act and the Land Registration Act
- Equity frowns upon unjust enrichment and a party who develops land on an understanding that it would be transferred to him is entitled to enforce that understanding
- Prior to the 2003 amendment of Section 3(3) of the Law of Contract Act, an oral or partly written contract for the disposition of an interest in land was enforceable where the purchaser had taken possession in part performance
Court orders
#- 1.A declaration that the transfer of parcel No. KIMILILI/KIMILILI/3126 to the 2nd and 3rd defendants and its subsequent combination with parcel No. KIMILILI/KIMILILI/3125 to create parcel No. KIMILILI/KIMILILI/3806 was null and void
- 2.An order specifically compelling the 2nd and 3rd defendants to transfer parcel No. KIMILILI/KIMILILI/3126 to the Plaintiff and to relinquish any claim thereto
- 3.Should any of the defendants fail to execute the transfer documents upon being served with the decree, the Deputy Registrar of the Court shall sign the same on behalf of the defendants and the Land Registrar shall effect the transfer
- 4.The 2nd and 3rd defendants shall meet the plaintiff's costs of the suit with interest
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over a claim for declaration, specific performance and cancellation of fraudulently obtained land registration (Section 143 of the repealed Registered Land Act and Section 80 of the Land Registration Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benedict Munialo Khaoya v Gabriel Mahindi Wasike & 2 others [2018] KEELC 2301 (KLR)", Case Analysis (2018). Civil Case No. 116 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2301/eng@2018-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.