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ELCPartially AllowedE.L.C. Case No. 598 of 2010· [2019] KEELC 4269 (KLR)

Susan Wamucii v Stanley Gathura Njenga & 2 others [2019] KEELC 4269 (KLR)

Environment and Land Court
18 February 2019
3,565 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, a shareholder of Lucky Summer Estates Company Limited, held a certificate of lease over Nairobi/Block 113/367. She discovered that the 1st Defendant had caused the property to be transferred to himself on 13/8/2003 without her knowledge or consent. The 1st Defendant later sold to the 2nd Defendant, who developed flats and charged the property to the 3rd Defendant, Family Bank. The 1st Defendant claimed he had purchased the property through the plaintiff's husband for Kshs. 500,000 and that he was an innocent purchaser who had also settled a competing adverse possession claim by Eddah Njeri Kamau. The court found the plaintiff more credible: she still held the original certificate of lease which ought to have been cancelled upon transfer; the 1st Defendant produced no sale agreement, transfer document or proof of payment; and the Land Registrar confirmed the transfer documents and parcel file were missing from the registry. The company chairman's denial of the plaintiff's membership was disbelieved as he was the 2nd Defendant's close friend and produced no company register. The 1st Defendant's double dealing in purchasing the same property from two claimants without alerting either cast doubt on his good faith. The plaintiff proved her case on a balance of probabilities. The court granted prayers (a), (b) and (c) of the amended plaint, restoring the plaintiff's title, but refused cancellation of the charge since the 3rd Defendant had discharged the property. Costs were awarded against the 1st Defendant only.

Key legal issues

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01

Whether the Plaintiff proved that her title was fraudulently transferred to the 1st Defendant

Holding

Yes, on a balance of probabilities. The 1st Defendant produced no sale agreement, no proof of payment of consideration, and no transfer signed by the Plaintiff, and the Plaintiff still held the original certificate of lease which should have been cancelled on registration of the transfer.

Reasoning

The 1st Defendant alleged he purchased the land through the Plaintiff's husband acting as her agent, but produced no sale agreement, no transfer signed by the Plaintiff and no evidence of payment of the Kshs. 500,000 consideration. The Plaintiff's husband testified and denied the sale. The Land Registrar could not locate the transfer documents, and the Plaintiff retained the original lease certificate, which ought to have been cancelled upon transfer. The court found the plaintiff's evidence more credible.

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02

Whether the 1st Defendant's dealings with Eddah Njeri Kamau undermined his claim of good faith

Holding

Yes. Buying the same property from two different claimants without alerting either created doubt as to his good faith.

Reasoning

The 1st Defendant settled HCCC No. 2135 of 2007 with Eddah Njeri Kamau by paying her Kshs. 1 Million and taking vacant possession, without joining the Plaintiff or the company who he claimed had sold him the land. The court found this double dealing with the same property from two claimants inconsistent with honest dealing and cast doubt on the good faith of his acquisition.

p. 3
03

Whether the 2nd Defendant's derivative title and the 3rd Defendant's charge could stand

Holding

The 2nd Defendant's title, derived from a fraudulently obtained root, could not stand. The prayer to cancel the 3rd Defendant's charge was refused as the charge had been discharged.

Reasoning

Having found the Plaintiff's claim over the suit land succeeded, the 2nd Defendant's title acquired from the 1st Defendant could not stand despite his claim to be an innocent purchaser. As to the 3rd Defendant, since it had discharged the Suit Property and taken alternative security, the court declined to grant cancellation of the charge, granting only prayers (a), (b) and (c) of the amended plaint.

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Legal principles established

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  • Where an alleged transferor still holds the original certificate of lease which ought to have been cancelled upon transfer, an inference of fraudulent transfer may be drawn
  • A derivative title from a fraudulently acquired root cannot stand; the defence of innocent purchaser for value fails where the transferor's title was vitiated by fraud

Court orders

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  1. 1.Grant of prayers (a), (b) and (c) of the Amended Plaint dated 10/12/2010
  2. 2.Refusal of the order for cancellation of the charge because the Suit Property had been discharged
  3. 3.Costs of the suit to be borne by the 1st Defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (amended plaint seeking cancellation of registration, restoration of title and injunction)

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, "Susan Wamucii v Stanley Gathura Njenga & 2 others [2019] KEELC 4269 (KLR)", Case Analysis (2019). E.L.C. Case No. 598 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4269/eng@2019-02-18

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