Alice Jane Njoki Chege v Rachel Wanjiku Chege & 2 others [2019] KEELC 1586 (KLR)
The bottom line
#A Kenyan court confirmed that land buyers get no title if the seller was never the real owner — the defrauded owner got her land back.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit against the 2nd and 3rd defendants was bad in law because PW1's evidence was allegedly hearsay and based on a post-transaction power of attorney
The objection failed; the suit was properly prosecuted under a duly stamped and registered power of attorney and PW1's evidence was largely within her own knowledge.
The court held that admissibility of evidence goes to proof, not to the viability of the suit. The objection should have been raised when the witness testified. PW1's evidence was within her own knowledge, and the source of her information (PW2) was called and available for cross-examination. No connection was shown between the date of the power of attorney and her testimony.
Whether the 1st defendant fraudulently sold and transferred the plaintiff's land
Yes; the 1st defendant's conviction in Limuru Criminal Case No. 712 of 2010 established the fraud, misrepresentation and deceit.
The 1st defendant was convicted of obtaining money by false pretences, obtaining land by false pretences and cheating the Land Control Board, and did not appeal. The 2nd and 3rd defendants did not contest that they dealt with the 1st defendant who pretended to be the plaintiff. The court was satisfied the sale and transfer were procured by fraud.
Whether the 2nd and 3rd defendants colluded in the fraud
No collusion proved, though the 2nd defendant was found not diligent in conducting the transaction.
The court noted the suspicious speed of the transaction and the payment of the purchase price into the 1st defendant's account rather than the plaintiff's, but held there was no evidence the 2nd and 3rd defendants knew the seller was not the owner. Suspicion of lack of diligence did not amount to proof of collusion.
Whether the plaintiff abetted or facilitated the fraud
No; the allegation was unsupported by evidence and contradicted by the plaintiff's reporting of the 1st defendant to the police.
The court reasoned that if the plaintiff had been party to the fraud she would not have reported the 1st defendant to police and prosecuted her. The criminal court had dismissed the 1st defendant's defence that the plaintiff authorised the sale. The 2nd and 3rd defendants adduced no material from which knowledge or approval by the plaintiff could be inferred.
Whether the 3rd defendant obtained a valid title
No; a non-owner could pass no title, and the 3rd defendant could not acquire proprietary interest however innocent.
It was undisputed that the plaintiff owned the land and never transferred it. The 1st defendant, not being the owner, had no interest to convey. The court relied on Alberta Mae Gacie v Attorney General and Arthi Highway Developers Ltd v West End Butchery Ltd to hold that innocence of the purchaser does not confer title where the vendor had none.
Whether the plaintiff was entitled to the reliefs sought
Yes; the claim was proved and the declaration and rectification of the register were granted, the joinder of the 2nd defendant being proper.
The 2nd defendant was the prime mover of the transaction and a necessary party for complete adjudication. The plaintiff proved her claim against all defendants, and there was no hindrance to granting the declaration of ownership and rectification of the register by cancelling the 3rd defendant's registration.
Legal principles established
#- A seller who is not the owner of the land cannot convey title to a purchaser, however innocent the purchaser may be.
- The admissibility of a party's evidence does not determine whether a suit is bad in law; it is relevant only to proof of the claim, and an objection to admissibility must be raised when the evidence is tendered.
- Costs follow the event unless the court orders otherwise.
Court orders
#- 1.Judgment entered for the plaintiff against the defendants jointly and severally in terms of prayers (a) and (b) of the plaint dated 20th March 2012
- 2.The Land Registrar, Kiambu Land Registry to rectify the register of L.R No. Tigoni/Mabroukie Block 1/1080 by cancelling entries numbers 6 and 7 and restoring entries numbers 4 and 5
- 3.The 3rd defendant to return the title deed issued to him to the Land Registrar forthwith for cancellation, failing which it shall be deemed cancelled
- 4.The Land Registrar to issue the plaintiff with another title deed for L.R No. Tigoni/Mabroukie Block 1/1080 subject to payment of the necessary charges
- 5.The plaintiff to have the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction over land (Environment and Land Court); suit instituted by plaint dated 20th March 2012
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kotak v Tucha Adventures Limited & 4 others (Environment & Land Case 86 of 2019) [2024] KEELC 859 (KLR)[2024] KEELC 859 (KLR)13 Feb 2024
Cite this brief
#Cite this brief
Caselaw, "Alice Jane Njoki Chege v Rachel Wanjiku Chege & 2 others [2019] KEELC 1586 (KLR)", Case Analysis (2019). Not stated in the judgment (plaint dated 20th March 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1586/eng@2019-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.