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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 3363 (KLR)

Mary E. Omollo v City Council of Nairobi & 2 others [2019] KEELC 3363 (KLR)

Environment and Land Court (High Court as constituted at the time, Nairobi)
17 May 2019
JMJ. M Mutungi
1,768 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The court restored a Nairobi woman's ownership of land fraudulently registered to someone else, but refused damages against the city council.

What this practically means

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Executive summary

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The Plaintiff sued the City Council of Nairobi, Donald Mbugua Mugo and the Registrar of Titles, alleging she was allocated Plot No. 189 Jamhuri Estate (LR No. Nairobi Block 63/522) in 1992, complied with the allotment terms, and had a lease executed in her favour on 12th January 1998, but the 1st Defendant instead fraudulently registered the lease in favour of the 2nd Defendant, who obtained a certificate of lease in September 2001. She sought a mandatory injunction to deregister the 2nd Defendant and register her, an injunction restraining the 2nd Defendant's interference, and damages against the 1st Defendant. The 2nd Defendant never entered appearance and interlocutory judgment was entered against him in 2005; the Attorney General for the Registrar of Titles was excused from participating with the Plaintiff's consent. At the hearing, the Plaintiff testified through her son under leave granted by Komingoi, J. The court framed three issues and found, first, that the Plaintiff was indeed allocated the suit property, corroborated by the 1st Defendant's 2007 letter and rates payments. Secondly, it held the 2nd Defendant's registration could only have been procured fraudulently since the 1st Defendant never leased the property to him, but found no evidence of collusion by the 1st Defendant, noting the absence of the registered instruments from the parcel file. Thirdly, the claim for damages against the 1st Defendant failed. Judgment was entered for the Plaintiff: a declaration of her lawful ownership, an order cancelling the 2nd Defendant's registration and registering her as proprietor, with each party bearing their own costs.

Key legal issues

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01

Allotment of the suit property to the Plaintiff

Holding

The Plaintiff was allocated Plot No. 189 Jamhuri Phase II by the 1st Defendant, as evidenced by the letter of allotment and the executed lease

Reasoning

The allotment letter dated 13th February 1992, the Plaintiff's acceptance and payment receipts, the lease executed in her favour on 12th January 1998, and the 1st Defendant's own 2007 letter confirming her as bona fide owner together satisfied the court that allocation occurred.

p. 2
02

Fraud in the 2nd Defendant's registration

Holding

The 2nd Defendant's registration was fraudulently procured, but the 1st Defendant played no part in it

Reasoning

The 1st Defendant never leased the property to the 2nd Defendant and interlocutory judgment stood against him for non-appearance. Without the registered documents from the parcel file, collusion could not be inferred, but absent rebuttal the registration was necessarily fraudulent.

p. 2
03

Liability of the 1st Defendant in damages

Holding

No liability established against the 1st Defendant for damages

Reasoning

No evidence showed the 1st Defendant allocated the property to the 2nd Defendant or participated in the fraudulent registration; its records consistently showed the Plaintiff as allottee and it had continued invoicing her for rates.

p. 3

Legal principles established

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  • Registration of a third party as proprietor of land allocated to another, where no valid lease existed in the third party's favour, may be inferred to have been fraudulently procured absent rebuttal evidence
  • To impute collusion between a land allotting authority and a subsequent registrant requires the registered instruments, ordinarily available in the registrar's parcel file

Court orders

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  1. 1.A declaration that the Plaintiff is the lawful owner of LR No. Nairobi Block 63/522
  2. 2.The land registrar to cancel the registration of Donald Mbugua Mugo as proprietor of LR No. Nairobi Block 63/522 and to register Mary E. Omondi as proprietor thereof
  3. 3.Each party to bear their own costs of the suit
Jurisdiction invoked
Not expressly stated; original civil suit on land ownership and cancellation of registration

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mary E. Omollo v City Council of Nairobi & 2 others [2019] KEELC 3363 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3363/eng@2019-05-17

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