Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Case No. 224 of 2014· [2019] KEELC 678 (KLR)

Lamu Breeze Investment & another v Charles Malakwen & 5 others [2019] KEELC 678 (KLR)

Environment and Land Court
22 November 2019
4,057 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

A Kenyan court cancelled a fraudulent title, ruling that whoever registered first keeps the land.

What this practically means

#

Executive summary

#
The 1st Plaintiff claimed to be the registered proprietor as lessee of LR No. 10159 Kilifi (Grant No. 18245, endorsed 27th August 1987), purchased from Justus Kalewa Ndoto and charged to Bullion Bank Ltd (now Equatorial Commercial Bank Ltd, the 2nd Plaintiff), which retained the original title deed as security for an outstanding loan of Kshs.32,000,000. In 2012 the 1st Plaintiff discovered a perimeter wall around the property and learned that the 1st and 2nd Defendants had, on 28th June 2007 and 15th July 2008, caused themselves to be registered as proprietors over the same parcel under title CR 44095, and had sold and transferred it to the 3rd Defendant on 19th August 2008. The 3rd Defendant, which owned the adjacent LR No. 10160, consolidated the two parcels into LR No. 28462. The Plaintiffs sought declarations that the Defendants' title and the consolidation were null and void, rectification of the register, cancellation of the 3rd Defendant's title, restoration of beacons and demolition of the wall. The Defendants denied fraud; the state Defendants filed defences but called no evidence. The 1st Defendant never testified, and the 2nd Defendant could not explain the root of his title. The court held that the Plaintiffs' Grant was first in time, protected under Section 23(4) of the repealed Registration of Titles Act, that two titles over one parcel is itself evidence of fraud by registry officials, and that the consolidation was effected without notice to the 1st Plaintiff. Judgment was entered for the Plaintiffs as against the Defendants as prayed in the Plaint, with costs to the Plaintiffs.

Key legal issues

#
01

Indefeasibility and priority of titles where two titles exist over the same property

Holding

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).

Reasoning

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.

p. 5
02

Failure of the 1st and 2nd Defendants to explain the root of their title

Holding

The 1st and 2nd Defendants failed to demonstrate how they acquired the suit property, casting doubt on the validity of their registration.

Reasoning

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.

p. 5
03

Irregular consolidation of the suit property with LR No. 10160

Holding

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.

Reasoning

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.

p. 5
04

Standard of proof - balance of probabilities

Holding

The Plaintiffs proved their case on a balance of probabilities and judgment was entered as prayed.

Reasoning

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.

p. 5

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. 1.Judgement entered for the Plaintiffs as against the defendants as prayed in the Plaint
  2. 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.