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ELCPartially AllowedELC 481 of 2017 (Formerly Nyeri ELC No. 203 of 2013, consolidated with Nyeri ELC No. 177 of 2015)· [2019] KEELC 1235 (KLR)

Mary Njoki Mburu & another v Josphat Kamande Kiarie & another;Stephen Harrison Ndungu & another (Interested Party) [2019] KEELC 1235 (KLR)

Environment and Land Court
24 October 2019
JKJ. G. Kemei
7,266 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer's title was cancelled because he couldn't prove how he got the land, and his buyers lost everything.

What this practically means

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Executive summary

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This consolidated suit (Nyeri ELC No. 203 of 2013 as lead file, consolidated with Nyeri ELC No. 177 of 2015, transferred to Murang'a as ELC 481 of 2017) concerned parcel MAKUYU/KIMORORI/BLOCK 1/1542, originally allocated to the late Kamau Nyongo through his shares in Ngimu Farm Limited. The 1st and 2nd Plaintiffs, administrators of the estates of Kamau Nyongo and his son Duncan Mburu Kamau, sought a declaration that the 1st Defendant's title was fraudulently obtained, reinstatement of the deceased as owner, and a permanent injunction. The 3rd Plaintiff sought specific performance of an alleged Kshs 5 million purchase of the whole parcel from the 1st Defendant. The 1st Defendant claimed he purchased the land from Kamau Nyongo in 1988 and was issued title through the Presidential committee on large-scale farms; he sold plots to the 1st Interested Party and the 3rd Plaintiff. The 2nd Interested Party church claimed a portion bought from Duncan Mburu Kamau. The Court found the Plaintiffs failed to prove fraud to the required standard, but held the 1st Defendant's title invalid: no executed transfer, no Land Control Board consent (contract void under Section 6 of the Land Control Act), no Ngimu Farm clearance, and unbelievable evidence of acquisition. Applying Munyu Maina, the Court held a proprietor whose root of title is challenged must prove legality of acquisition. The 3rd Plaintiff and 1st Interested Party could not obtain specific performance from a seller with no title; the church's purchase from a person without confirmed grant was intermeddling under Section 45 of the Law of Succession Act. The Court cancelled the 1st Defendant's title, reinstated the title in the name of Francis Kamau Nyongo (deceased), issued a permanent injunction, and awarded costs to the 1st and 2nd Plaintiffs against the 3rd Plaintiff, 1st Defendant and Interested Parties.

Key legal issues

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01

Whether the 1st and 2nd Plaintiffs proved fraud

Holding

They failed to prove fraud to the required standard; no documents supporting fraud were presented and the Land Registrar was not called to explain the duplicate searches

Reasoning

The Court restated that fraud must be specifically pleaded and strictly proved to a standard above balance of probabilities. The Plaintiffs did not call the Land Registrar to explain the mystery of two searches on the same date showing different owners, and adduced no documentary proof of the alleged fraudulent creation of a new green card.

p. 7
02

Validity of the 1st Defendant's title

Holding

The 1st Defendant did not acquire a valid title; his evidence of acquisition was unbelievable and the conveyance was legally defective

Reasoning

There was no executed transfer, no Land Control Board consent (rendering the contract void under Section 6 of the Land Control Act), no clearance certificate from Ngimu Farm, and the registration fees before the Presidential Commission were in Kamau Nyongo's name. The 1st Defendant failed to fill the gaps between the alleged sale and registration, so the title does not enjoy protection under Sections 24 and 25 of the Land Registration Act.

p. 10
03

Specific performance for the 3rd Plaintiff and 1st Interested Party

Holding

Refused; a seller with no title cannot pass title, and the defective contracts cannot be enforced

Reasoning

Specific performance is discretionary and premised on a valid, enforceable contract. Since the 1st Defendant received no title from Kamau Nyongo, he had nothing to pass; nemo dat quod non habet applies, and the contracts were steeped in nullities and illegalities. The plaintiffs were left to alternative remedies of refund and/or damages.

p. 10
04

2nd Interested Party's claim

Holding

Invalid; the purchase from Duncan Mburu Kamau before confirmation of grant amounted to intermeddling contrary to Section 45 of the Law of Succession Act

Reasoning

Duncan Mburu Kamau lacked legal capacity to contract over an undistributed estate, having no certificate of confirmation of grant. The sale in 2008 could not bind the estate of Kamau Nyongo, and the grant of letters of administration takes effect only from its date.

p. 11
05

Rectification of the register

Holding

The Court ordered rectification under Section 80 of the Land Registration Act, cancelling the 1st Defendant's title and reinstating the title of the deceased

Reasoning

Section 80 permits rectification where registration was obtained by fraud or mistake, and the proviso does not protect a proprietor who caused or contributed to the illegality. The 1st Defendant knew of and contributed to the illegal, unprocedural registration, so the title was cancelled in favour of the deceased's registered name.

p. 12

Legal principles established

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  • Fraud must be specifically pleaded, its particulars stated on the face of the pleading, and it must be distinctly proved to a standard higher than balance of probabilities, not inferred from facts
  • Where a registered proprietor's root of title is challenged, it is not sufficient to dangle the instrument of title; the proprietor must prove the legality of how he acquired the title
  • A sale of agricultural land without Land Control Board consent is void under Section 6 of the Land Control Act
  • The doctrine of lis pendens binds not only the defendant but also those who derive title through him during pending litigation

Court orders

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  1. 1.Declaration that the registration of the 1st Defendant as owner of land parcel MAKUYU/KIMORORI/BLOCK1/1542 was illegally obtained
  2. 2.Cancellation of the title in the name of Josphat Kamande Kiarie and registration of the parcel in the name of Francis Kamau Nyongo, deceased
  3. 3.The Land Registrar, Murang'a ordered to effect the rectification in the Register
  4. 4.Permanent injunction preventing the Defendants and Interested Parties from interfering with the quiet utilization of the suit land
  5. 5.Costs of the suit awarded to the 1st and 2nd Plaintiffs, borne by the 3rd Plaintiff, the 1st Defendant and the Interested Parties

Authorities

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Legislation

  • Land Registration ActSections 24, 25, 26, 37, 80
  • Registered Land Act (repealed)Sections 43 (as quoted), 143(1)
  • Land ActSections 43, 46
  • Land Control ActSection 6
  • Transfer of Property ActSection 52 (lis pendens)
  • Law of Succession Act (Succession Act)Sections 45, 79, 80(2)

Cases cited (15)

  • Simon Nyoro Ngugi V John Baptista Irungu Kariuki & Anor
    2018 (EKLR)
  • Esther Ndegi Njiru & Anor Vs Leonard Gatei
    (2014) EKLR
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • In R. G. Patel v. Lalji Makanji
  • Bellamy v Sabince
    I De G & J 566
  • Mawji v US International University & Another
    [1976] KLR Page 199
  • Munyu Maina Vs Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009
  • Republic vs Minister for Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others
    Mombasa HCMCA No. 617 of 2003 [2006] 1 KLR (E&L) 563
  • Kenya National Highway Authority vs Shalien Masood Mughal & 5 Others
    [2017] eKLR
  • Alberta Mae Gacci vs Attorney General & 4 Others
    (2006) eKLR
  • Chemei Investments Limited vs The Attorney General & Others
    Nairobi Petition No. 94 of 2005
  • Milan Kumar Shah & 2 Others vs City Council of Nairobi & Another
  • Bishopsgate Motor Finance Corporation Ltd vs Transport Brakes Ltd
    (1949) 1 KB 322
  • Re Estate of M'Ngarithi M'Muriti
    [2017] eKLR
  • Benson Mutuma Muriungi Vs C.E.O Kenya Police Sacco & Another
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (file transferred from ELC Nyeri to Murang'a)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mary Njoki Mburu & another v Josphat Kamande Kiarie & another;Stephen Harrison Ndungu & another (Interested Party) [2019] KEELC 1235 (KLR)", Case Analysis (2019). ELC 481 of 2017 (Formerly Nyeri ELC No. 203 of 2013, consolidated with Nyeri ELC No. 177 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1235/eng@2019-10-24

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