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ELCAllowedELC Case No 366 of 2017· [2018] KEELC 4293 (KLR)

Susan Karea Muthaura v Solomon Mwokobia Nkuraru & 3 others [2018] KEELC 4293 (KLR)

Environment and Land Court
15 February 2018
2,955 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled fraudulently obtained land titles and returned a deceased man's property to his widow, showing even 'undefended' cases need solid proof.

What this practically means

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Executive summary

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The plaintiff, widow and legal representative of Douglas Muthaura (deceased), sued the 1st and 2nd defendants and the District Land Registrar Nanyuki and the Attorney General, seeking declarations that transfers of land parcel Laikipia/Daiga-Umande Block 4/396 were fraudulent, an order for re-transfer to her, and eviction. The 1st and 2nd defendants never entered appearance or filed defences despite service; the 4th defendant entered appearance but did not defend. An earlier interlocutory judgment against the government had been struck out for want of leave under Order 10 rule 8 of the Civil Procedure Rules. At formal proof, the plaintiff testified that the deceased was the registered proprietor and had charged the land to Kenya Commercial Bank in 1996; the bank confirmed it never executed a discharge and still held the original title. Yet searches on 5th and 6th April 2011 showed the land moved from the deceased to the 2nd defendant within a day, and the 1st defendant claimed a 2001 purchase. The court held that even in an undefended suit the plaintiff had to prove her case on a balance of probabilities, found fraud proved, held that the defendants intermeddled with a deceased's estate contrary to section 45 of the Law of Succession Act, and invoked sections 26(1) and 80(1) of the Land Registration Act to cancel the 2nd defendant's title. Judgment was entered for the plaintiff with declarations, reinstatement as proprietor, eviction, a permanent injunction, and costs at the lower scale.

Key legal issues

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01

Whether fraud was proved against the defendants

Holding

Fraud was proved: the suit land changed hands from the deceased to the 2nd defendant within a day while the charge to Kenya Commercial Bank remained undischarged and the bank still held the title deed.

Reasoning

The plaintiff produced search certificates dated 5th and 6th April 2011 showing the parcel changed from the deceased to the 2nd defendant within a day, yet the bank had not executed a discharge and still held the original title. The green card recorded a discharge on 5th March 2011, years after the proprietor's death in 2005, and the transfers occurred before completion of the succession cause, contrary to section 45 of the Law of Succession Act.

p. 4
02

Whether the plaintiff's title should be restored by rectification of the register

Holding

Yes. The court invoked section 80(1) of the Land Registration Act to cancel the 2nd defendant's title and reinstate the plaintiff as registered proprietor in line with the confirmed grant.

Reasoning

The deceased was the registered proprietor protected by section 26(1) of the Land Registration Act at his death, and the confirmed succession grant ordered the suit land registered in the plaintiff's name. Since the defendants' registrations were procured by fraud, the court exercised its power under section 80(1) to cancel the registration and rectify the register in the plaintiff's favour.

p. 4

Legal principles established

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  • A registered proprietor's indefeasible title under section 26(1) of the Land Registration Act may be challenged on the ground of fraud or misrepresentation to which the person is proved to be a party, or where the title was acquired illegally, un-procedurally or through a corrupt scheme.
  • The court may order rectification of the register where a registration was obtained, made or omitted by fraud or mistake.
  • Even in an undefended suit, the plaintiff retains the duty to formally prove the case on a balance of probabilities.

Court orders

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  1. 1.A declaration that the transfer of land parcel No. Laikipia/Daiga-Umande Block 4/396 to the 1st Defendant and subsequently to the 2nd Defendant was illegal, irregularly un-procedural and fraudulent
  2. 2.A declaration that the 3rd Defendant re-transfer the said land into the names of the Plaintiff
  3. 3.Cancellation of the 2nd Defendant's title and removal of her name as proprietor, and reinstatement of the plaintiff as registered proprietor of the leasehold title pursuant to the certificate of grant dated 20th February 2012
  4. 4.The 1st and 2nd Defendants to forthwith vacate the suit land and, failing which, an order of eviction to issue against them
  5. 5.A permanent injunction restraining the 1st and 2nd Defendants from entering into, dealing or in any way interfering with the suit land
  6. 6.Costs to the plaintiff at the lower scale since the suit was undefended

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 8
  • Civil Procedure RulesOrders 3, 7 and 11
  • Law of Succession Actsection 45
  • Land Registration Actsection 26(1)
  • Land Registration Actsection 80(1)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title and registration of land

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Susan Karea Muthaura v Solomon Mwokobia Nkuraru & 3 others [2018] KEELC 4293 (KLR)", Case Analysis (2018). ELC Case No 366 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4293/eng@2018-02-15

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