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ELCPartially AllowedELC Case No. 300 of 2013· [2019] KEELC 273 (KLR)

Gatei Wa Nganda v Kamiti Farmers Company Limited & 4 others [2019] KEELC 273 (KLR)

Environment and Land Court
13 December 2019
2,653 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, domiciled in the USA, sued for a declaration that he was the bona fide owner of Nairobi/Block 117/468, which he purchased in 1996 from the original allottee, Lucas Kimani Woru, and for which the 1st Defendant (Kamiti Farmers Company Limited) had issued him a share certificate. In January 2013 he discovered beacons on the land indicating a sale. The 3rd Defendant claimed he had bought the land in January 2012 from one 'Gatei wa Nganda' identified by passport number A158220 and later transferred it to the 2nd Defendant for Kshs. 5,000,000. The Plaintiff denied any sale, produced passport evidence showing he was abroad when the sale allegedly occurred, and called a document examiner who found the signatures on the sale agreement were not his. The 3rd Defendant, despite filing a defence and witness statement, never testified. The 1st Defendant supported the Plaintiff, confirming its records showed him as the genuine owner, and noted a prior ruling that Simon Njuguna was never its chairman or director. The court found, on a balance of probabilities, that the Plaintiff did not sell the land and that a forged passport was used in a fraudulent transaction. Holding that the Plaintiff had proved his case, the court granted prayers (a) to (f) of the plaint dated 22/2/2013, including the declaration of ownership and restraint against the 2nd Defendant, and awarded the Plaintiff costs against the 2nd and 3rd Defendants. Judgment was delivered on 13 December 2019 by K. Bor, J.

Key legal issues

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01

Whether the Plaintiff sold the Suit Property to the 3rd Defendant

Holding

The court found, on a balance of probabilities, that the Plaintiff did not sell the Suit Property; a forged passport bearing different particulars was used in the fraudulent transaction, and the document examiner confirmed the signatures on the sale agreement were not the Plaintiff's.

Reasoning

The Plaintiff's passport evidence showed he was out of the country at the relevant time and the passport used in the transaction had expired in 1999. The document examiner's report found the signatures on the agreement for sale differed from the Plaintiff's specimen. The 3rd Defendant's alleged confirmant, Simon Njuguna, was not called as a witness, and the 1st Defendant's records confirmed the Plaintiff as genuine owner. The 3rd Defendant, despite filing a defence and witness statement, did not testify.

p. 3
02

Whether the 2nd Defendant was a bona fide purchaser for value

Holding

The Plaintiff argued the 2nd Defendant failed the bona fide purchaser test in Lawrence Mukiri v Attorney General; the court's finding of fraud against the 3rd Defendant meant no good title passed to the 2nd Defendant, and the Plaintiff's case succeeded against her.

Reasoning

The Plaintiff relied on the criteria in Lawrence Mukiri v Attorney General and 4 others [2013] eKLR: holding a certificate of title, good faith, no knowledge of fraud, and vendor with apparent valid title. Since the 3rd Defendant's root title was fraudulently obtained, he had no good title to pass. The court granted all the Plaintiff's prayers, including restraining the 2nd Defendant, and awarded costs against her.

p. 3
03

Whether a party who does not testify can rely on pleadings and documents

Holding

The 3rd Defendant filed a defence and witness statement but neither testified nor called evidence; his claim that he lawfully bought the land from the Plaintiff was unsupported.

Reasoning

The 3rd Defendant did not attend court on 3/7/2019 or on 30/9/2019 when his advocate closed his case. Simon Njuguna, whom the 3rd Defendant claimed confirmed his purchase, was not called. Consequently there was no evidence to prove the alleged sale or rebut the Plaintiff's evidence of forgery, and the 1st Defendant's records contradicted the 3rd Defendant's claim.

Legal principles established

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  • A party alleging fraud must prove it to the standard required on a balance of probabilities, and a title procured by fraud or misrepresentation to which the registered owner is a party is challengeable under Section 26 of the Land Registration Act.
  • A party who claims to have purchased land must adduce evidence supporting that acquisition; failure to testify leaves the claim unproved.

Court orders

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  1. 1.Grant of prayers (a), (b), (c), (d), (e) and (f) of the plaint dated 22/2/2013, including a declaration that the Plaintiff is the bona fide owner of the Suit Property and that the 1st to 3rd Defendants have no claim to it
  2. 2.Costs of the suit awarded to the Plaintiff, to be borne by the 2nd and 3rd Defendants

Authorities

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Legislation

  • Land Registration ActSection 26
  • Land Registration ActSection 24
  • Land Registration ActSection 25

Cases cited (1)

  • Lawrence Mukiri v Attorney General and 4 others
    [2013] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act)

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, "Gatei Wa Nganda v Kamiti Farmers Company Limited & 4 others [2019] KEELC 273 (KLR)", Case Analysis (2019). ELC Case No. 300 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/273/eng@2019-12-13

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