Kibiro Wagoro Makumi v Francis Nduati Macharia & another [2018] KEELC 4102 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Limitation
The claim was not statute barred because time began to run on discovery of the fraud in September 2014 and suit was filed on 17/9/15
Section 26 of the Limitation of Actions Act postpones the start of limitation in fraud-based actions until the plaintiff discovered or could with reasonable diligence have discovered the fraud. The plaintiff produced a search certificate dated 22/9/14 showing discovery, consistent with his evidence, which the court found believable.
Fraudulent acquisition of the 1st Defendant's title
The Plaintiff proved to the required standard that the 1st Defendant fraudulently procured registration in 1972; the title was tainted by fraud and cancelled
The plaintiff, the first registered owner, testified he never sold the land and had occupied it since 1961; the green card showed registration of the 1st Defendant one month after the plaintiff's title issued, with an indicated purchase price. The 1st Defendant, duly served, never appeared. The court found the uncontroverted evidence proved forgery of transfer and Land Control Board consent, amounting to fraud.
Validity of the charge in favour of the 2nd Defendant
The charge was invalid as it was founded on a fraudulently obtained title; it was cancelled and discharged unconditionally
The bank claimed to be an innocent chargee for value and conducted searches, but led no evidence of repayment efforts or realization of security, and could not explain a disturbing entry on the green card referring to an agreement under section 70. Since the root title was fraudulent, there was no valid title capable of conveying a realizable security.
Legal principles established
#- Fraud must be distinctly pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt
- A title obtained by fraud is not protected by indefeasibility; the register can only be challenged on fraud or misrepresentation to which the owner is a party
- Where a title is tainted with fraud, a charge founded on that title conveys no legal interest and must be cancelled; the onus shifts to the chargee to rebut the taint
Court orders
#- 1.A declaration that the 1st Defendant acquired title to land Loc 8/Ndikwe/31 fraudulently and the title is cancelled and reverts to the name of KIBIRO WAGORO
- 2.A declaration that the charge in favour of the 2nd Defendant is cancelled and discharged unconditionally
- 3.Costs of the suit to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act over disputes relating to title to land
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kibiro Wagoro Makumi v Francis Nduati Macharia & another [2018] KEELC 4102 (KLR)", Case Analysis (2018). Murang'a ELC Suit (plaint dated 16/09/2015, amended 12/10/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4102/eng@2018-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.