Mary Wangui Njoroge (suing as the Administratix of the Estate of Julius Njoroge Chomba) v Kasarani Holdings Company & another [2019] KEELC 2701 (KLR)
The bottom line
#A Kenyan court confirmed that even a registered land title can be cancelled if obtained through fraud, and ordered a director to vacate the plot he had grabbed.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff's deceased husband had a legal interest in the suit property
The deceased purchased the suit property under a sale agreement dated 26th August 2001, was issued a certificate and became a member of the 1st defendant, and the 1st defendant held the property in trust for him; the defendants did not controvert this evidence
The court relied on the sale agreement dated 26th August 2001, the certificate issued, receipts of payment and other exhibits (P1-P16). The 2nd defendant did not appear to demonstrate any competing claim and the defendants were absent at the hearing, leaving the plaintiff's evidence uncontroverted. The court found the deceased to be the owner having purchased the property.
Whether the 2nd defendant trespassed and constructed on the suit property
The 2nd defendant, a director of the 1st defendant, was fraudulently allocated the suit property and has trespassed onto it, putting up permanent and semi-permanent structures
The plaintiff produced photographs of the scene as exhibits, and letters from Nairobi City County. This evidence was unchallenged, the defendants and their counsel having failed to attend the hearing despite being aware of the date, so the matter proceeded exparte. The court found the trespass proved.
Whether the plaintiff is entitled to the reliefs sought
The plaintiff proved her case on a balance of probabilities and was granted permanent and mandatory injunctions, a declaration of ownership by the estate, damages for trespass of Kshs.150,000, and costs and interest
The court found the plaintiff had proved her case against the defendants on a balance of probabilities, citing Esther Ndegi Njiru & Another vs Leonard Gatei on the susceptibility of titles acquired illegally, unprocedurally or through a corrupt scheme to challenge under Section 26(1) of the Land Registration Act. All reliefs sought in the plaint were granted, with quantum of damages fixed at Kshs.150,000.
Legal principles established
#- A title may be challenged on the ground of fraud or misrepresentation to which the proprietor is a party, or where the certificate of title was acquired illegally, unprocedurally or through a corrupt scheme, notwithstanding the indefeasibility of title under Section 26(1) of the Land Registration Act
Court orders
#- 1.A permanent injunction restraining the defendants from entering upon, remaining upon, constructing, trespassing upon and/or interfering with the plaintiff's quiet possession of Plot No. 155 comprised in LR No. 8119
- 2.A permanent injunction prohibiting the defendants from entering upon, remaining upon, transferring, occupying, leasing, charging, mortgaging, constructing, assigning or interfering with the deceased's estate's quiet possession of Plot No. 155 comprised in LR No. 8119
- 3.A mandatory injunction compelling the defendants and any other person occupying the property to unconditionally vacate and remove any permanent or semi-permanent structures or materials thereon at their own costs
- 4.A declaration that the estate of the deceased is the lawful, legal, absolute and rightful owner of Plot No. 155 comprised in LR No. 8119 in Kasarani within Nairobi County
- 5.Damages for trespass of Kshs.150,000
- 6.Costs of the suit and interest
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (plot No. 155 comprised in LR No. 8119, Kasarani, Nairobi)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wangui Njoroge (suing as the Administratix of the Estate of Julius Njoroge Chomba) v Kasarani Holdings Company & another [2019] KEELC 2701 (KLR)", Case Analysis (2019). ELC Civil Case No. 1415 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2701/eng@2019-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.