Petronillah Nafuna Khaemba v Attorney General & 7 others [2019] KEELC 3009 (KLR)
The bottom line
#Kenyan court cancelled a fraudulently obtained land title, restored the owner's property, and awarded her Kshs 3.1 million in damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the transfer to the 6th defendant was fraudulent
The transfer was procured fraudulently by fraudsters working with the 7th defendant and Lands Registry staff using a fake certificate of lease; the plaintiff was not privy to the fraud
The plaintiff held the original lease and certificate of lease throughout. The 6th defendant testified that the person presented as seller was not the plaintiff. The alleged seller and brokering agents were not called as witnesses, the vendor's advocate did not testify, and the certificate of lease against which the transfer was effected was never produced for scrutiny. The totality of evidence established fraud.
Whether the 6th defendant's title was protected by Section 26 of the Land Registration Act as a bonafide purchaser
No; fraud in the acquisition of title defeats indefeasibility, and the transfer was procured on a fake certificate of lease and is liable to cancellation
The court held that Parliament never intended to approve fraud in acquisition of title under either the repealed or current registration framework. Where a legitimate owner is dispossessed through fraud, courts must remedy the fraud by annulling the fraudulent entries, and all subsequent entries suffer the same fate.
Liability of the 5th, 6th and 8th defendants
No culpability was established against them; the 5th defendant was a financier, the 6th paid the purchase price, and the 8th only witnessed the purchaser's signature
The 5th defendant financed the purchase; the 6th defendant paid the purchase price which was remitted to the 7th defendant and reported the fraud to the Banking Fraud Unit; the 8th defendant's role was limited to witnessing execution of the transfer instrument by the 6th defendant. There was no evidential basis for holding them liable.
Liability of the 7th defendant who did not enter appearance
The claim against him is undefended and wholly succeeds; he was a key player who uttered the fake title and received the purchase price
The 7th defendant was duly served but opted not to defend. He allegedly uttered the fake title document, witnessed the transfer instrument, and received the purchase price. He was a key player in the impugned transaction and the court noted he confirmed awareness of the suit during its pendency yet did not participate.
Quantum of damages for mesne profits
Damages of Kshs 3,114,000 awarded against the 3rd and 7th defendants jointly and severally, based on the valuer's rent assessments from 2005 to 2015 plus 42 months at Kshs 32,000 per month
PW3, a registered land valuer, assessed annual rents for 2005 to 2015. The plaintiff remained dispossessed to date, so the court accepted the assessments and further awarded rent at the 2015 rate of Kshs 32,000 monthly for 42 months from 01/1/2016, totaling Kshs 1,344,000, bringing the total to Kshs 3,114,000.
Legal principles established
#- Indefeasibility of title does not protect a title acquired through fraud; courts have a duty to annul fraudulent entries
- A transfer procured on the basis of a fake certificate of lease is null and void and all subsequent entries fall with it
Court orders
#- 1.It is hereby declared that the transfer of Nairobi/Block 111/409 from Petronillah Nafuna Khaemba to Elias Kagwa Kubania was fraudulent and is therefore null and void
- 2.The said transfer and all subsequent entries are nullified and ownership of the suit property is restored to the plaintiff, Petronillah Nafuna Khaemba
- 3.The 3rd and 7th defendants shall jointly and severally pay the plaintiff damages assessed at Kshs 3,114,000/- together with interest from the date of the judgment
- 4.The 3rd and 7th defendants shall bear costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property land reference number Nairobi/Block 111/409
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Perrucchetti & another v Kinuthia Holdings Ltd & 4 others (Environment and Land Case 213 of 2014) [2026] KEELC 4143 (KLR)[2026] KEELC 4143 (KLR)3 Jul 2026
- Marcello Perrucchetti & another v Kinuthia Holdings Ltd & 4 others [2020] KEELC 1236 (KLR)[2020] KEELC 1236 (KLR)28 Sept 2020applied
- Margaret Kamene Mulwa & another v Paradise Bay Limited & 3 others [2020] KEELC 1548 (KLR)[2020] KEELC 1548 (KLR)30 Jul 2020
Cite this brief
#Cite this brief
Caselaw, "Petronillah Nafuna Khaemba v Attorney General & 7 others [2019] KEELC 3009 (KLR)", Case Analysis (2019). Not stated in the judgment as provided (plaint dated 21/7/2005, amended 16/6/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3009/eng@2019-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.