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ELCPartially AllowedCivil Suit No. 217 of 1991· [2018] KEELC 4347 (KLR)

Juko Alex Tabulo v A. M. Fadhelkhan & another [2018] KEELC 4347 (KLR)

Environment and Land Court
16 February 2018
AOA. Omollo
3,515 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 a plot buyer's title because it was issued while a court injunction blocked the sale, confirming due process beats paperwork.

What this practically means

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Executive summary

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The Environment and Land Court at Mombasa determined competing claims to plot No. 405-11492/R.80 at Mariakani Township. The plaintiff, claiming ancestral ownership inherited through his family and registered verbally by the County Council of Kilifi in 1976, sought a permanent and mandatory injunction, declarations that the council never lawfully alienated the plot to Rodgers Ngumuta or the 1st defendant, damages for trespass and conspiracy, costs and interest. The 1st defendant, who bought the plot from Rodgers Ngumuta in 1988 and obtained a title deed in 1996, and the council denied the claim. The court framed three issues: whether the plaintiff's default in paying rates cancelled his rights; whether Ngumuta had a good title to pass; and the effect of the 1st defendant's registration. It found that although the plaintiff defaulted, there was no evidence of demand, notification of cancellation, proper allocation procedure or balloting, and Ngumuta paid neither the outstanding rates nor any allocation fees, so he had no interest to sell. The 1st defendant's title, processed while a subsisting injunction was in force, breached section 143(2) of the repealed Registered Land Act (now section 26(1) of the Land Registration Act) and was invalidated. Declarations and injunction were granted; damages were refused. The plaintiff was ordered to reimburse the 1st defendant's rates payments, and costs were awarded against the 2nd defendant.

Key legal issues

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01

Whether default in payment of rates cancelled the plaintiff's rights over the plot

Holding

The plaintiff defaulted but no evidence of demand or notification of cancellation was shown, so his rights were not cancelled

Reasoning

The court found the plaintiff owned the plot and had paid rates. Although he defaulted, the 2nd defendant adduced no evidence of repossession, of proper procedure being followed, or of any demand or notice of cancellation to the plaintiff. The plaintiff's evidence of ancestral ownership remained unchallenged, and the council accepted outstanding rates in March 1988 before transferring the plot to the 1st defendant.

p. 3
02

Whether Rodgers Ngumuta had a good title to pass to the 1st defendant

Holding

He had no interest in the plot to sell; the council never validly allocated it to him

Reasoning

There was no letter of allocation, no receipt for the plot or rates, no evidence of balloting, and DW 2 did not pay the outstanding rates. Without any allocation or payment, nothing vested any interest in the plot in Rodgers Ngumuta, so he passed no title to the 1st defendant.

p. 3
03

The effect of the 1st defendant's registration as owner

Holding

The title obtained in 1996 was issued in breach of a subsisting injunction and section 143(2) of the Registered Land Act and was invalidated

Reasoning

The title was processed while the suit and an injunction were in force; alienation breached the order's wide meaning of 'dealing' and section 143(2) of Cap 300, since the 1st defendant knew of the dispute long before. The court invoked the current analogue, section 26(1) of the Land Registration Act, and cancelled the registration as unprocedural and illegal.

p. 4

Legal principles established

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  • The register shall not be rectified so as to affect the title of a proprietor who has acquired land for valuable consideration unless such proprietor had knowledge of, or caused or contributed to, the fraud or mistake
  • A party who acquires title over land subject to a subsisting injunction, unprocedurally and in breach of the law, may have such registration cancelled by the court

Court orders

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  1. 1.Prayers (a), (b) and (c) of the amended plaint allowed as presented
  2. 2.No damages awarded as the 1st defendant had not been in possession of the land and no evidence of intended developments was presented
  3. 3.The plaintiff shall re-imburse all monies paid to the 2nd defendant by the 1st defendant as rates once receipts are presented
  4. 4.The registration of the 1st defendant by virtue of the title deed issued on 1st July 1996 or any title deed issued in favour of the 1st defendant be and is hereby invalidated
  5. 5.Costs of the suit awarded to the plaintiff to be paid by the 2nd defendant

Authorities

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Legislation

  • Local Government Act
  • Physical Planning Act
  • Registered Land Act Cap 300 (repealed)section 143(2); section 3(b)
  • Land Registration Actsection 26(1)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over ownership 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, "Juko Alex Tabulo v A. M. Fadhelkhan & another [2018] KEELC 4347 (KLR)", Case Analysis (2018). Civil Suit No. 217 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4347/eng@2018-02-16

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