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ELCAllowedELC Case (as stated) - Plaint dated 10th September 2012· [2019] KEELC 3733 (KLR)

Virginia Ngendo Kamau (suing as the Administrator of the Estate of the late Kamau Wangi) v Attorney General & another [2019] KEELC 3733 (KLR)

Environment and Land Court
9 April 2019
2,497 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a fraudulently obtained land title and made the Lands Ministry share the costs.

What this practically means

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Executive summary

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In this unopposed suit the Plaintiff, administrator and sole beneficiary of the Estate of Kamau Wangi (deceased), sought a declaration of ownership, an order that the 2nd Defendant was fraudulently registered as proprietor of NAIROBI/BLOCK 110/885, rectification of the register cancelling the 2nd Defendant's registration, transfer of the property to her, costs and interest. She averred the deceased was registered proprietor until at least October 2001 per an official search, yet a Green Card obtained in July 2005 showed the 2nd Defendant registered by a transaction backdated to 1995, while she still held the original title. Neither Defendant filed a defence; the 1st Defendant only cross-examined the Plaintiff, and the 2nd Defendant, served by substituted service advertised in the Daily Nation, never appeared, leaving the Plaintiff's evidence uncontroverted. The court framed three issues: fraud, entitlement to reliefs, and costs. Applying Gichinga Kibutha, the court noted uncontroverted evidence is not automatically accepted and the burden of proof must still be discharged. It found the co-existence of two titles over one property - with the Plaintiff holding the original title and the 2nd Defendant unable to explain his acquisition - constituted outright forgery and strictly proved fraud, citing Sai Office Supplies. Consequently, the indefeasibility under Section 26(1) of the Land Registration Act was displaced and rectification ordered under Section 80(1). Judgment was entered for the Plaintiff against both Defendants jointly and severally in terms of prayers (a) to (f), with costs awarded to the Plaintiff, shared jointly and severally because the 1st Defendant's officers were negligent in issuing two titles.

Key legal issues

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01

Whether the 2nd Defendant's title was obtained by fraud

Holding

Yes - the title was obtained by fraud/forgery; the Plaintiff still held the original title while the 2nd Defendant held a title, and the 2nd Defendant offered no explanation for the acquisition.

Reasoning

The Plaintiff produced a grant of administration, an official search of 5th October 2001 showing the deceased still registered, and a Green Card showing a backdated transfer to the 2nd Defendant from 1995 - an impossibility since a 2001 search should have shown the 2nd Defendant. The 2nd Defendant never appeared to explain how he acquired the property. Relying on Sai Office Supplies, the court held the existence of two titles over one property is itself evidence of forgery, and since fraud must be strictly proved, the Plaintiff discharged that burden on the evidence.

p. 3
02

Whether the Plaintiff is entitled to the reliefs sought

Holding

Yes - the Plaintiff is entitled to the declaration of ownership and consequential orders including rectification of the register under Section 80(1) of the Land Registration Act.

Reasoning

Having found fraud, the indefeasibility of title under Section 26(1) of the Land Registration Act falls away, since a title is challengeable on grounds of fraud, misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme. The court was therefore empowered under Section 80(1) to order cancellation of the registration obtained by fraud and substitution of the Plaintiff as proprietor.

p. 4
03

Who will bear the costs of the suit

Holding

The Plaintiff, as the successful party, gets costs payable jointly and severally by both Defendants because the 1st Defendant's officers in the Ministry of Lands were negligent in issuing two titles.

Reasoning

Applying the principle that costs follow the event, the successful Plaintiff is entitled to costs. The court additionally held the 1st Defendant's officers negligent for issuing two titles over the same property, justifying joint and several liability for costs between the two Defendants.

p. 4

Legal principles established

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  • Where title is issued through fraud or acquired illegally, the court may order rectification and cancellation of the registration under the Land Registration Act.
  • Uncontroverted evidence is not automatically accepted; the plaintiff must still discharge the burden of proof.

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendants jointly and severally as prayed in the Plaint in terms of prayers (a), (b), (c), (d), (e) & (f)
  2. 2.Declaration that the Plaintiff is owner and entitled to sole possession of NAIROBI/BLOCK 110/885
  3. 3.Order that the 2nd Defendant is wrongly and unlawfully through fraud registered as proprietor of NAIROBI/BLOCK 110/885
  4. 4.Rectification of the register by cancellation of the registration of NAIROBI/BLOCK 110/885 in favour of the 2nd Defendant and substitution with registration of the Plaintiff as sole proprietor
  5. 5.The 2nd Defendant to execute all relevant transfer documents in favour of the Plaintiff, in default the Executive Officer of the Court to execute them, costs to be met by the 2nd Defendant
  6. 6.Costs of the suit to the Plaintiff, payable by the Defendants jointly and severally, with interest on costs

Authorities

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Legislation

  • Land Registration ActSection 80(1)
  • Land Registration ActSection 26(1)

Cases cited (4)

  • Shaneebal Limited vs County Government of Machakos
    (2018) eKLR
  • Karuru Munyororo vs Joseph Ndumia Murage & Another
    Nyeri HCCC No.95 of 1988
  • Gichinga Kibutha vs Carooline Nduku
    (2018) eKLR
  • Sai Office Supplies Limited vs Rosemary Alivista Luseno & Another
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Virginia Ngendo Kamau (suing as the Administrator of the Estate of the late Kamau Wangi) v Attorney General & another [2019] KEELC 3733 (KLR)", Case Analysis (2019). ELC Case (as stated) - Plaint dated 10th September 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3733/eng@2019-04-09

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