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ELCAllowedMurang'a ELC (Case number not stated on the face of the judgment)· [2019] KEELC 3604 (KLR)

Francis Mburu Kamau v Methi & Swani Farmers Co-operative Society Limited & 5 others [2019] KEELC 3604 (KLR)

Environment and Land Court
30 April 2019
6,183 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land title obtained through fraud, ruling that even registered owners lose protection when titles are tainted.

What this practically means

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Executive summary

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The Plaintiff sued for permanent injunction, cancellation of title No MITUBIRI/WEMPA/BLOCK2/2411 registered in favour of Hope Self Help Group, mandatory injunction to register title in his name, eviction, and general damages for trespass and fraud. He had purchased a ballot (No 1725), share certificate and receipts from Peter Lewis Karanja in 2009 with the knowledge and participation of the 1st Defendant land buying company and its secretary (2nd Defendant). In 2013 he found the land registered to Hope Self Help Group, which claimed to have purchased from Bernard Karanja, holder of ballot 1724. The court framed five issues: jurisdiction, winding up of the 1st Defendant, fraudulent registration, bona fide purchase, and appropriate orders. It held the Environment and Land Court has exclusive jurisdiction over title revocation, the Cooperative Tribunal having none; no evidence established winding up of the 1st Defendant. Fraud was proved against the 2nd Defendant, who prepared the register leaving the Plaintiff's parcel number blank, gave the Plaintiff a non-existent alternative plot, and was convicted of forgery in Kigumo CMCR No 115/13, whose judgment under Section 47A of the Evidence Act was treated as conclusive. The 3rd-5th Defendants failed to prove due diligence, a sale agreement or payment of consideration, and so were not bona fide purchasers for value without notice. Judgment was entered for the Plaintiff as prayed, including cancellation of the title, registration in his favour and nominal general damages of Kshs 100,000/- for trespass.

Key legal issues

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01

Jurisdiction of the ELC vis-à-vis the Cooperative Tribunal

Holding

The ELC has exclusive jurisdiction to cancel/revoke title; the Cooperative Tribunal cannot

Reasoning

The subject matter is cancellation of a registered title under the Land Registration Act, a dispute reserved for the Environment and Land Court under Article 165. The Cooperative Tribunal is limited to cooperative disputes under Section 76 of the Cooperative Societies Act and cannot order revocation of title.

p. 4
02

Whether the 1st Defendant was wound up (affecting competence of the suit)

Holding

No evidence of winding up; defendants failed to discharge burden of proof

Reasoning

The 1st and 2nd Defendants pleaded liquidation but adduced no evidence; both officials of the society testified without mentioning winding up. Parties are bound by pleadings and the court decides only issues canvassed in evidence and submissions.

p. 4
03

Whether the suit land was fraudulently registered in favour of the Self Help Group

Holding

Fraud proved; the 2nd Defendant orchestrated the fraudulent registration

Reasoning

The 2nd Defendant prepared the register leaving the Plaintiff's parcel number blank despite the survey map (PEX 10) showing ballot 1725 against the suit parcel. He was convicted of forgery and uttering false documents in Kigumo CMCR No 115/13, whose judgment under Section 47A of the Evidence Act is conclusive evidence of guilt. The alternative plot 631 does not exist on the ground.

p. 6
04

Whether the 3rd-5th Defendants are bona fide purchasers for value without notice

Holding

They are not; no search, no sale agreement, no proof of consideration

Reasoning

No evidence of search at the 1st Defendant, no sale agreement, no transfer forms, share certificates not cancelled, vendor could not recall the date of sale, and no proof consideration was paid. The title was procured through an irregular and tainted process.

p. 7
05

Damages for trespass

Holding

Trespass proved; nominal general damages of Kshs 100,000/- awarded

Reasoning

The defendants' presence on the land is illegal and unauthorized given the tainted title; trespass is actionable per se, justifying nominal general damages.

p. 7

Legal principles established

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  • The Cooperative Tribunal has no jurisdiction to revoke title to land; disputes on cancellation of registered land title lie in the Environment and Land Court
  • The standard of proof for fraud is very high, beyond balance of probabilities, approaching but below proof beyond reasonable doubt
  • Under Section 26(1)(b) of the Land Registration Act, the title of an innocent holder is impeachable if obtained illegally, unprocedurally or through a corrupt scheme
  • A bona fide purchaser must prove valid title, due diligence and payment of valuable consideration
  • A final judgment of a competent court in criminal proceedings is conclusive evidence of guilt for purposes of a subsequent civil suit

Court orders

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  1. 1.Cancellation of title No MITUBIRI/WEMPA/BLOCK2/2411 registered in favour of Hope Self Help Group
  2. 2.Registration of the suit land in the name of the Plaintiff
  3. 3.Nominal general damages of Kshs 100,000/- for trespass payable to the Plaintiff
  4. 4.Judgment entered for the Plaintiff as prayed in the Plaint
  5. 5.Costs of the suit to the Plaintiff (costs as prayed in the Plaint)

Authorities

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Legislation

  • Registered Land Act (repealed, Cap 300)Section 26(1)
  • Land Registration ActNo. 3 of 2012; Sections 24, 26(1)(b) / 26(b)
  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticle 162(2), Article 165
  • Companies ActSections 228 and 241
  • Evidence ActSections 34(a), 47A, 48
  • Cooperative Societies ActSection 76

Cases cited (11)

  • Republic v Gathaite Farmers Cooperative Society Ltd & another Ex-Parte Richard Nganga Kamiro
    [2013] eKLR
  • Chumo Arap Songok v David Keigo Rotich
    [2006] eKLR
  • Ratilal Gordhanbhai Patel V. Lalji Makanji
    [1957] EA 314
  • Ulmila Mahindra Shah v. Barclays Bank International and Anor
    [1979] KLR
  • Elijah Makori Nyangwara vs Stephen Mungai Njuguna & Another
    [2013] eKLR
  • Charles Karathe Kiarie & 2 others –Vs- Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others
    [2013] eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR
  • Katende v Haridar & Company Limited
    [2008] 2 E.A.173
  • Samuel Kamere -Vs Land Registrar
    (2015) EKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • Richard Odual Opole –Vs- Commissioner of Lands & 2 Others
    (2015) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Francis Mburu Kamau v Methi & Swani Farmers Co-operative Society Limited & 5 others [2019] KEELC 3604 (KLR)", Case Analysis (2019). Murang'a ELC (Case number not stated on the face of the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3604/eng@2019-04-30

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