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ELCPartially AllowedNot stated in the judgment as provided· [2020] KEELC 210 (KLR)

Alice Njeri Kamau & 2 others v Attorney General & 2 others [2020] KEELC 210 (KLR)

Environment and Land Court
17 December 2020
LGL. Gacheru
2,676 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land title obtained through fraud, confirming that holding a title deed alone does not prove genuine land ownership.

What this practically means

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Executive summary

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The Plaintiffs, co-administrators of the Estate of Peter Ndungu Wainaina (Deceased), sued the Kiambu District Land Registrar and Alice Wanjiru Karanja, seeking declarations that the Estate's title to Kabete/Lower Kabete/696 was genuine, that the 3rd Defendant's title was fraudulently obtained, rectification of the register, cancellation of the fraudulent entries, removal of a restriction and caution, general damages for fraud, and costs. They alleged that a search in July 2015 revealed the 3rd Defendant registered as owner following a transfer of 14th June 2006, despite the deceased holding the original title and no transfer form RL1, Land Control Board consent, or supporting documents existing on the register. The 1st and 2nd Defendants filed a defence but called no witnesses; the 3rd Defendant did not enter appearance despite service. The Court, per L. Gacheru J, held that unchallenged evidence still had to be tested against the balance-of-probabilities standard, relying on Shaneebal Limited and Kenya Power & Lighting Co Ltd. The 3rd Defendant, whose root of title was challenged, bore the onus of proving legality of acquisition under Munyu Maina and Daudi Kiptugen, and having failed, her title was found fraudulently and illegally acquired, null and void, and impeachable under Sections 26(1) and 80(1) of the Land Registration Act. Judgment was entered for the Plaintiffs in terms of prayers (a), (b), (c), (d), (e), (f) and (h) with costs; the general damages prayer (g) was not granted. Judgment was delivered virtually under COVID-19 directions.

Key legal issues

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01

Whether the 3rd Defendant's title was fraudulently and illegally acquired

Holding

The 3rd Defendant failed to establish the root of her title; the title was fraudulently acquired and is impeachable, null and void.

Reasoning

The Green Card showed a transfer to the 3rd Defendant on 14th June 2006, but no transfer Form RL1, Land Control Board consent, ID card or PIN certificate existed on the register. The Plaintiffs' unchallenged evidence was that the deceased never signed transfer forms. The 3rd Defendant, despite service, never entered appearance to prove the root of her title. Under Section 26(1) of the Land Registration Act, a title is defeasible where acquired illegally, unprocedurally or through fraud.

p. 3
02

Whether the register should be rectified in favour of the Estate

Holding

The register was to be rectified to cancel the fraudulent entry and reinstate the Estate's title, under Section 80(1) of the Land Registration Act.

Reasoning

Having found the 3rd Defendant's title was procured by fraud, the Court invoked Section 80(1) which empowers rectification of registrations obtained by fraud or mistake. The Estate held the original title deed which was never challenged, and as registered proprietor was entitled to the rights and privileges under Sections 24 and 25 of the Land Registration Act.

p. 4
03

Whether unchallenged evidence suffices for judgment

Holding

Uncontroverted evidence still must be interrogated and prove the case on a balance of probabilities.

Reasoning

The Court declined to enter judgment merely because the defence called no witnesses. Relying on Shaneebal Limited v County Government of Machakos and Kenya Power & Lighting Co Ltd v Nathan Karanja Gachoka, the Court held that uncontroverted evidence must still establish fault on a balance of probability.

p. 2

Legal principles established

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  • When a registered proprietor's root of title is challenged, it is not sufficient to dangle the instrument of title; the proprietor must prove the legality of the acquisition.
  • Title acquired through an improper process is not good title; the process of acquisition is material.
  • Uncontroverted evidence is not automatic proof; a plaintiff must still prove the case on a balance of probabilities.
  • Under Section 80(1) of the Land Registration Act, the court may order rectification of the register where a registration was obtained by fraud or mistake.

Court orders

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  1. 1.Judgment for the Plaintiffs against the Defendants jointly and severally as prayed in the Plaint dated 14th March 2017
  2. 2.In terms of prayer No. (a): declaration that the Plaintiffs' Title No. Kabete/Lower Kabete/696 in the name of Peter Ndungu Wainaina is the genuine and valid title
  3. 3.In terms of prayer No. (b): order that the 2nd Defendant cancel the fraudulent entry, fraudulent transfer and the name Alice Wanjiru Karanja from the register
  4. 4.In terms of prayer No. (c): declaration that the fraudulent Title Deed in the name of the 3rd Defendant was fraudulently obtained and deemed cancelled
  5. 5.In terms of prayer No. (d): order that the register be rectified to reinstate Peter Ndungu Wainaina as registered owner
  6. 6.In terms of prayer No. (e): order that the Land Registrar use the genuine title for registration of Transfer Forms RL7 and RL19 as per the Certificate of Confirmation of Grant
  7. 7.In terms of prayer No. (f): removal of the restriction and caution registered against the title
  8. 8.In terms of prayer No. (h): costs of the suit to the Plaintiffs

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80(1)
  • Land Registration ActSections 24 and 25
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (5)

  • Shaneebal Limited Vs County Government of Machakos
    (2018) eKLR
  • Karuru Munyororo Vs Joseph Ndumia Murage & Another
    Nyeri HCCC No.95 of 1988
  • Kenya Power & Lighting Company Limited Vs Nathan Karanja Gachoka & another
    [2016] eKLR
  • Munyu Maina Vs Hiram Gathiha Maina
    Civil Appeal No.239 of 2009
  • Daudi Kiptugen Vs Commissioner of Lands & 4 Others
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction over a land dispute concerning title and rectification of the register under the Land Registration Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Alice Njeri Kamau & 2 others v Attorney General & 2 others [2020] KEELC 210 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/210/eng@2020-12-17

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