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ELCDismissedNot stated in the judgment· [2019] KEELC 15 (KLR)

Municipal Council of Kisumu v Teleposta Pension Scheme Registered Trustees & 26 others; K-Rep Bank Limited (Interested Party) [2019] KEELC 15 (KLR)

Environment and Land Court
20 November 2019
SKS. M. KibunjaAOA. Ombwayo
6,660 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~27 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Municipal Council of Kisumu (succeeded by the County Government of Kisumu) sued 27 Defendants and one Interested Party, claiming it was the registered lessee of I.R. 12663 measuring 7.72 acres from 1956 for an African Social Centre. It alleged that after surrendering 0.0996 acres in 1968 for road extension, the Registrar of Titles fraudulently converted its title into Kisumu Municipality/Block 9/1 under the Registered Land Act, and that a fraudulent surrender of 11th February 1980 divested it of the land, which was allocated to Kenya Posts & Telecommunications Corporation, transmitted to the 1st Defendant (Teleposta Pension Scheme) by Legal Notice No. 154 of 1999, and subdivided into 103 parcels sold to various purchasers. The Plaintiff sought declarations of fraud, cancellation of registrations and titles, restitution, injunction and general damages. The 1st Defendant and the purchasers pleaded lawful acquisition and bonafide purchase; the State Defendants pleaded surrender extinguished the Plaintiff's interest and raised limitation statutes. The court found the parties agreed on the 1956 grant and the 1968 partial surrender, but held that the Plaintiff failed to prove that John Mwangi, the Commission Secretary, lacked authority to execute the 1980 surrender, as required by Section 107 of the Evidence Act; accordingly the land was lawfully surrendered and free for alienation. The conversion, allocation, subdivision and registrations were held regular, done with approvals involving the Plaintiff itself, and the purchasers were established as bonafide purchasers protected under Sections 26 and 80 of the Land Registration Act. Fraud was not strictly proved to the standard in R.G. Patel v Lalji Makanji. The claim for damages failed and the suit was dismissed in its entirety with costs.

Key legal issues

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01

Authority to execute the 1980 surrender

Holding

The Plaintiff failed to prove lack of authority of John Mwangi, Secretary to the Commission, to execute the surrender of 11th February 1980; the surrender was lawful.

Reasoning

Under Section 107 of the Evidence Act the Plaintiff bore the burden of proving lack of authority. Such proof could have been through resolutions of the Commission or Council before or after the surrender. No minutes were produced; PW1 admitted he had seen no such minutes and that no action was taken against John Mwangi. The court therefore found the second surrender valid and the land free for alienation by the Commissioner of Lands.

02

Fraud in the conversion of title and allocation

Holding

No fraud was proved in the conversion of the title to the Registered Land Act regime or in the allocation of Kisumu Municipality/Block 9/1 to Kenya Posts & Telecommunications Corporation.

Reasoning

The register showed the land was registered in the Plaintiff's name on 27th September 1975 and the Plaintiff raised no complaint with the 2nd Defendant until it surrendered the parcel on 11th February 1980. The allotment was made in 1985 after the valid surrender, when the land was free for alienation, and no loss of acreage was occasioned by the conversion.

p. 5
03

Fraud in the subdivision and registration of parcels in the 1st Defendant's name

Holding

The subdivision of Kisumu Municipality/Block 9/329 into 103 parcels was procedurally done with the approvals of, among others, the Plaintiff itself.

Reasoning

The Town Engineer of the Plaintiff approved the subdivision plan, the District Physical Planning Officer and Director of Surveys were involved, the Part Development Plan was gazetted for objections with none received, and the Plaintiff's witnesses produced no minutes showing contrary resolutions. The Plaintiff also continued receiving rates for the subdivided parcels, showing awareness of the transactions.

p. 5
04

Status of the Defendants who purchased parcels

Holding

The purchasers were established as bonafide purchasers and their titles are protected.

Reasoning

Section 39(1) of the repealed Registered Land Act relieved a purchaser for value from inquiring into how the vendor was registered. The test in Katende v Haridar was met: the purchasers held titles, bought in good faith for value without notice of fraud. PW1 admitted the purchasers could not be faulted, and the 1st Defendant did not challenge their acquisitions.

p. 6

Legal principles established

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  • Allegations of fraud must be strictly proved, to a standard higher than a mere balance of probabilities.
  • A bonafide purchaser for value without notice of fraud acquires an absolute, unqualified defence against a claim of a prior equitable owner.
  • The burden of proving fraud lay on the Plaintiff under Section 107 of the Evidence Act.

Court orders

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  1. 1.The Plaintiff's suit against all the Defendants was dismissed with costs as detailed in paragraph 15(n) of the judgment
  2. 2.The Plaintiff, a public body, and the 2nd, 3rd, 4th and 27th Defendants, being public offices, were each directed to bear their own costs
  3. 3.Costs were awarded to the 21st Defendant and the Interested Party, who had Counsel on record, and to all the other Defendants who testified in court and/or were represented by Counsel who attended court or filed written submissions

Authorities

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Legislation

  • Registration of Titles Act (repealed)Cap. 281
  • Registered Land Act (repealed)Chapter 300; Sections 26 and 39(1)
  • Land Registration ActNo. 3 of 2012, Sections 26 and 80
  • Evidence ActChapter 80, Section 107
  • Limitation of Actions ActSections 7 and 9(1)
  • Government Proceedings ActSection 13A
  • Public Authorities Limitation ActSection 3
  • Government Land ActSection 136(1) and (2)
  • Civil Procedure ActChapter 21, Section 27
  • Kenya Communications Act, 1998Third Schedule, paragraph 5(6)

Cases cited (4)

  • Richard Oduol Opole Vs Commissioner of Lands & 2 Others
    [2015] eKLR
  • Gudka Vs Dodhia
    Civil Appeal No. 21 of 1980
  • R. G. Patel Vs Lalji Makanji
    [1957] E.A. 314
  • Katende Vs Haridar & Company Limited
    (2008) 2 E.A. 173
Jurisdiction invoked
First-instance suit in the Environment and Land Court under Article 162(2)(b) of the Constitution (as stated by the parties' pleading of a land dispute); no express provision quoted in the judgment.

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, "Municipal Council of Kisumu v Teleposta Pension Scheme Registered Trustees & 26 others; K-Rep Bank Limited (Interested Party) [2019] KEELC 15 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/15/eng@2019-11-20

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