Lamu Breeze Investment & another v Charles Malakwen & 5 others [2019] KEELC 678 (KLR)
The bottom line
#A Kenyan court cancelled a fraudulent title, ruling that whoever registered first keeps the land.
What this practically means
#Executive summary
#Key legal issues
#Indefeasibility and priority of titles where two titles exist over the same property
The Plaintiffs' Grant No. 18245, registered in 1987, was first in time and prevails over the Defendants' Grant No. 44095 of 2008; the Plaintiffs' title was protected under Section 23(4) of the Registration of Titles Act (repealed).
The court compared the endorsement dates on the two Grants over the same parcel. The Plaintiffs' Grant was endorsed in 1987, the Defendants' in 2008, and no irregularity was shown on the Plaintiffs' title. The original title deed remained in the custody of the chargee bank, and under the repealed Registration of Titles Act the registered owner enjoys absolute and indefeasible title, challengeable only on fraud to which the owner is a party.
Failure of the 1st and 2nd Defendants to explain the root of their title
The 1st and 2nd Defendants failed to demonstrate how they acquired the suit property, casting doubt on the validity of their registration.
The 2nd Defendant claimed his late father had initiated the title process through the 1st Defendant, but produced no Letter of Allotment or allocation documents, and the 1st Defendant never testified. The court held that where defendants are accused of fraudulent registration over a property already subject to another title, they must clearly demonstrate how they became beneficiaries of the parcel.
Irregular consolidation of the suit property with LR No. 10160
The consolidation was effected without notice to or consent of the 1st Plaintiff and was a scheme aimed at depriving the 1st Plaintiff of its property.
The Plaintiffs had alerted the 4th and 6th Defendants in writing as early as August 2008 about possible fraudulent dealings, yet nothing was done. The consolidation of LR No. 10159 with LR No. 10160 proceeded without notice to or consent of the registered proprietor, and neither the 4th nor the 6th Defendant produced evidence to rebut the fraud claims.
Standard of proof - balance of probabilities
The Plaintiffs proved their case on a balance of probabilities and judgment was entered as prayed.
After weighing the oral testimonies, documentary evidence and submissions, the court was satisfied that the Plaintiffs had discharged their burden. The vendor's chain of documents (Letter of Allotment, receipts, Grant No. 18245 of 1987) was intact, whereas the Defendants could not explain the root of their title, and no evidence was led by the state defendants to rebut the fraud allegations.
Legal principles established
#- The existence of two different titles over the same property is itself evidence of participation in forgery by officials in the Ministry of Lands, and the Government bears full responsibility for the accuracy of the register and authenticity of titles issued.
- A registered proprietor's title can only be challenged on grounds of fraud or misrepresentation to which the owner is proved to be a party; the sanctity of title under the Registration of Titles Act takes precedence over alleged equitable rights.
Court orders
#- 1.Judgement entered for the Plaintiffs as against the defendants as prayed in the Plaint
- 2.The Plaintiffs to have the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (suit concerning title to and registration of land); initially filed at Mombasa as ELC No. 78 of 2013 and transferred to Malindi on 18th September, 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lamu Breeze Investment & another v Charles Malakwen & 5 others [2019] KEELC 678 (KLR)", Case Analysis (2019). ELC Case No. 224 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/678/eng@2019-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.