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ELCAllowedMurang'a ELC Suit (plaint dated 16/09/2015, amended 12/10/2015)· [2018] KEELC 4102 (KLR)

Kibiro Wagoro Makumi v Francis Nduati Macharia & another [2018] KEELC 4102 (KLR)

Environment and Land Court
8 March 2018
3,116 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, the first registered owner of land parcel Loc 8/Ndikwe/31 since 1961, sued to cancel the title of the 1st Defendant, registered in October 1972 for an indicated purchase price of Kshs. 5,635, and the charge registered in favour of the 2nd Defendant (a bank), alleging forgery of the transfer and Land Control Board consent. The 1st Defendant never entered appearance despite service by advertisement, and interlocutory judgment was entered against him on 1/12/2016. The 2nd Defendant defended, claiming to be an innocent chargee for value with outstanding facilities of about Kshs. 5.6 million advanced since 1974, and pleaded limitation. The court framed four issues: limitation, fraudulent acquisition, validity of the charge, and costs. Applying section 26 of the Limitation of Actions Act, it held time ran only from discovery of the fraud in September 2014, so the suit was not time-barred. Applying the Court of Appeal's indefeasibility jurisprudence in Dr. Joseph Arap Ngok, it held that fraud unmasks indefeasible title, and found the plaintiff's uncontroverted, credible evidence proved fraud to the required elevated standard. On the charge, the bank failed to explain an unexplained entry on the green card and made no efforts to realize security; following Alice Chemutai Too, since the root title was fraudulent, the charge conveyed no realizable security and was cancelled. The court declared the 1st Defendant's title fraudulently acquired, cancelled it, reinstated the plaintiff, cancelled and unconditionally discharged the charge, and awarded costs to the plaintiff, directing the bank to pursue the 1st Defendant and third-party borrower personally.

Key legal issues

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01

Limitation

Holding

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

Reasoning

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.

p. 2
02

Fraudulent acquisition of the 1st Defendant's title

Holding

The Plaintiff proved to the required standard that the 1st Defendant fraudulently procured registration in 1972; the title was tainted by fraud and cancelled

Reasoning

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.

p. 3
03

Validity of the charge in favour of the 2nd Defendant

Holding

The charge was invalid as it was founded on a fraudulently obtained title; it was cancelled and discharged unconditionally

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.A declaration that the charge in favour of the 2nd Defendant is cancelled and discharged unconditionally
  3. 3.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 26
  • Land Registration Act No. 3 of 2012Sections 25 and 26
  • Registration of Land Act No 6 of 2012Sections 26 and 29
  • Registration of Titles ActSection 23(1)
  • Registered Land ActSection 70 (referenced via green card entry)
  • Civil Procedure RulesOrder 1 rule 9

Cases cited (8)

  • Wallingford v Mutual Society
    (1880) 5 App. Cas. 685
  • Garden Neptune V Occident
    [1989] 1 Lloyd's Rep. 305
  • Lawrence V Lord Norreys
    (1880) 15 App. Cas. 210
  • Davy V Garrett
    (1878) 7 Ch.D. 473
  • Insurance Company of East Africa –vs– The Attorney General & 3 Others
    HCCC No. 135 of 1998
  • Arthi Highway Developers Limited - Vs - West End Butchery Limited and Others
    Civil Appeal No. 246 of 2013
  • Dr. Joseph Arap Ngok – Vs – Justice Moijo ole Keiwua & 5 others
    Civil Appeal No. Nai. 60 of 1997
  • Alice Chemutai Too Vs Nickson Kipkurui Korir & 2 others
    (2015) Eklr
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over disputes relating to title to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.