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ELCDismissedPetition (filed 28th November 2012)· [2019] KEELC 527 (KLR)

Ali Mohamed Kijuvi & another v Registrar of Title Mombasa & 2 others; Josephine Naisenya Mbatia & another (Interested Parties) [2019] KEELC 527 (KLR)

Environment and Land Court
5 November 2019
CYC.K. YANO
3,712 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A family challenging land titles for fraud lost because vague allegations and missing evidence don't win court cases.

What this practically means

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Executive summary

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The petitioners, heirs of Ahmed Bin Said through the estate of Hamadi Ali Kijuvi, challenged the creation and registration of certificates of title LR Nos. MN/III/540, 541 and 542 carved out of the original parcel LR No. MN/III/167 at Mtwapa, Kilifi. They sought declarations that the registrations were irregular and breaches of their constitutional rights, nullification of the titles and of entries 7, 8 and 9 on the parent register, cancellation of Deed Plans 97958-97960, a declaration of quiet occupation, conservatory orders and damages. Their case was that the 1st respondent registered the titles in favour of the 2nd interested party on the basis of a forged transfer dated 27th August 1998, executed by persons already deceased, and relied on Article 40(6) of the Constitution and Section 26(1)(a) and (b) of the Land Registration Act to seek cancellation. The respondents and interested parties countered that the Kadhi's court order of 17th February 1994 was never registered or served, that fraud must be specifically proved, that the Public Trustee was an indispensable but absent party, and that the dispute concerned competing private rights requiring oral evidence in a substantive suit. The court framed three issues and dismissed the petition: the petitioners failed the Annarita Karimi Njeru precision test, made general unproved allegations of fraud, and did not demonstrate any constitutional violation. The court directed the parties to file a civil suit to agitate their respective rights and ordered each party to bear their own costs.

Key legal issues

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01

Whether the petitioners' constitutional rights were violated by the registration of the suit titles

Holding

No violation was established; the allegations were general and unsupported by evidence

Reasoning

The court held that although the petitioners alleged infringement, they did not demonstrate how their rights were violated. They also failed to join the Public Trustee, a crucial party, and made only general allegations of fraud which they failed to prove. The petition failed the precision test in Annarita Karimi Njeru.

p. 4
02

Whether the fraudulently-obtained titles could be cancelled in the petition

Holding

No; competing claims of ownership require a substantive suit with oral evidence

Reasoning

Both the petitioners and the interested parties claimed ownership. Fraud must be specifically proved, requiring sufficient evidence to be adduced. The court found the issues of ownership could not be conclusively resolved through the petition and directed the parties to file a civil suit for determination on the merits.

p. 4
03

Whether the Public Trustee ought to have been joined

Holding

Yes; the failure to join the Public Trustee was fatal to the petition

Reasoning

The properties were at one stage registered in the Public Trustee's name as administrator/agent, and its joinder would have explained the registrations. Counsel for the respondents had also noted the Public Trustee was an important party for determination of the dispute.

p. 4

Legal principles established

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  • Fraud must not only be pleaded but must be specifically proved
  • A petitioner seeking constitutional redress must state the claim with precision, citing the provisions infringed and the manner of infringement
  • Competing private rights of ownership of land require adduction of oral evidence in a substantive suit, not resolution by petition

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear their own costs
  3. 3.Direction that the parties file a civil suit to agitate their respective rights and for evidence to be adduced

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 68(c)(v)
  • Constitution of Kenya, 2010Article 40(6)
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (7)

  • Keroche Industries Ltd –v- Kenya Revenue Authority & 5 Others
    (2007) eKLR
  • Republic –v- Minister for Home Affairs and Others ex-parte Leonard Sitamze
    (2008) eKLR
  • Reg –v- Secretary of State for the Environment for Ex parte Notting Hamshire Country Council
    (1986) AC
  • Reg –v- Inland Revenue Commssioners Ex Parte National Federation of Self Employed and Small Business Ltd
    (1982) AC 617
  • Sceneries Limited –v- National Land Commision
    (2017) eKLR
  • Judy Watiri Wambugu –v- Chief Land Registrar & 7 Others
    (2014) eKLR
  • Annarita Karimi Njeru –v- Attorney General
    (1970) KLR 154
Jurisdiction invoked
Constitution of Kenya, 2010 - Articles 40(6), 68(c)(v) and fundamental rights and freedoms invoked in a constitutional petition

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, "Ali Mohamed Kijuvi & another v Registrar of Title Mombasa & 2 others; Josephine Naisenya Mbatia & another (Interested Parties) [2019] KEELC 527 (KLR)", Case Analysis (2019). Petition (filed 28th November 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/527/eng@2019-11-05

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