Thuo Ng’ang’a v Faith Wanjiru Thuo & another [2018] KEELC 2416 (KLR)
The bottom line
#A Kenyan court cancelled titles to family land because a wife used an invalid power of attorney to sell jointly owned property without her husband's consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the transfer of the suit land to the 1st Defendant was fraudulent and/or illegal
The transfer was null and void, being wrought with fraud and illegality
The Power of Attorney was undated, unregistered and general, authorising no self-dealing. The transfer was undated, unregistered and inconsistent with the claim of a gift. The Land Control Board consent was uncorroborated and inconsistent with the receipt's date. The restriction was removed under the wrong statutory provision without notice to the Plaintiff, and all dealings occurred on a single day. No spousal consent was obtained.
Whether the 2nd Defendant was a bonafide purchaser for value without notice
He was not; he received nothing from a void title and had notice of the register entries
Having found the transfer to the 1st Defendant null and void, nothing passed to the 2nd Defendant. At the time of the sale agreement the land remained jointly registered and the restriction subsisted. Under section 26/29 of the Land Registration Act a purchaser is deemed to have notice of all register entries; due diligence would have revealed the 1st Defendant had no independent interest. The documents were tainted with the same illegalities and were null and void.
Legal principles established
#- A general power of attorney does not authorise an attorney to transfer land to herself and does not donate rights to dispose of a co-owner's interest; an unregistered power of attorney is invalid
- A restriction must be removed under section 78 of the Land Registration Act, not section 73(3) which deals with cautions; removal under the wrong provision is an unlawful process
- A purchaser is deemed to have notice of every subsisting entry in the register at the time of acquisition
- A disposition of jointly owned matrimonial land without spousal consent is invalid
Court orders
#- 1.The titles in respect to Land Reference Number Loc.3/Gituru/875 registered in the names of the 1st Defendant and/or the 2nd Defendant be and are hereby cancelled.
- 2.The title in respect to Land Reference Number Loc.3/Gituru/875 do and hereby reverts to the names of the Plaintiff and the 1st Defendant as per entry No.3 in the title register.
- 3.A permanent injunction restraining the 2nd Defendant, his servants and/or agents from selling, leasing, charging, disposing, entering into, utilizing or interfering in any way with the Plaintiff and 1st Defendant use and enjoyment of land known Land Reference Number Loc.3/Gituru/875.
- 4.The Defendants shall pay the cost of this suit.
- Jurisdiction invoked
- Original civil suit under the Land Registration Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thuo Ng’ang’a v Faith Wanjiru Thuo & another [2018] KEELC 2416 (KLR)", Case Analysis (2018). Not stated in judgment (Plaint filed 1/8/17). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2416/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.