Katana Kahindi Fondo (Suing as the Legal Representative of the estate of Kahindi Fondo (Deceased) v Little Cottage Estated Co Limited, Registrar of Titles - Mombasa & Attorney General (Environment & Land Case 249 of 2013) [2019] KEELC 438 (KLR)
The bottom line
#The Mombasa Environment and Land Court cancelled a company's land title obtained by fraud and restored the family's ownership, even though the company never showed up to defend the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st defendant's title was fraudulently obtained
Yes - fraud against the 1st defendant was proved on a balance of probabilities as the transfer was unsupported by any requisite documents and unchallenged
The Land Registrar confirmed the deed file lacked the transfer form signed by the plaintiff, valuation report, rates clearance certificate and stamp duty receipts. The only receipt on file was for a stranger, Ali Mohamed Ali, who was neither the plaintiff, the 1st defendant nor a director of the 1st defendant. The plaintiff's unchallenged evidence was that he never sold or transferred the land. Fraud was thus proved against the 1st defendant.
Whether the register should be rectified under Section 80 of the Land Registration Act
Yes - the registration fell within the exceptions in Section 26(1) and the court invoked Section 80(1) to cancel the 1st defendant's registration and restore the plaintiff
The court held that it has power under Section 80 to order rectification of a register where a registration was obtained by fraud or mistake. Having proved the case on a balance of probabilities and shown the transfer lacked the mandatory supporting documents, the plaintiff was entitled to cancellation of the fraudulent entry and reinstatement as registered owner.
Whether the statutory notices and limitation objections raised by the 2nd and 3rd defendants defeated the claim
No - the objections were never raised before or during the hearing and no evidence was led on them
The 2nd and 3rd defendants pleaded limitation and non-service of statutory notice in their defence but never raised the preliminary objection and led no evidence on it. The plaintiff argued the fraud was discovered in October 2013 and suit filed in November 2013, relying on Section 26 of the Limitation of Actions Act.
Legal principles established
#- Where a registered proprietor's root of title is under challenge, the proprietor must prove the legality of how the title was acquired, beyond merely producing the title instrument
- Even in an undefended suit, the plaintiff retains the duty to formally prove the case on a balance of probabilities
Court orders
#- 1.A declaration that Entry No. 2 of the register of TITLE NO. MN/II/3633, being the purported transfer in favour of the 1st defendant, is illegal, fraudulent, null and void
- 2.The 2nd defendant to cancel the registration of Little Cottage Estates Company Limited as the owner of TITLE NO. MN/II/3633 CR. 20520
- 3.The 2nd defendant to register the plaintiff as the owner of and issue a certificate of title to the plaintiff of TITLE NO. MN/II/3633 CR 20520
- 4.Each party to bear own costs, the 1st defendant having not defended the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Section 80 of the Land Registration Act (rectification of register) and Article 162(2) of the Constitution (not expressly cited in the judgment; powers invoked under Section 80 of the Land Registration Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Katana Kahindi Fondo (Suing as the Legal Representative of the estate of Kahindi Fondo (Deceased) v Little Cottage Estated Co Limited, Registrar of Titles - Mombasa & Attorney General (Environment & Land Case 249 of 2013) [2019] KEELC 438 (KLR)", Case Analysis (2019). Not stated in judgment (Mombasa Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/438/eng@2019-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.