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ELCAllowedNot stated in judgment as excerpted· [2020] KEELC 218 (KLR)

Teresia Wangari Mbugua v Jane Njeri Nduati & another [2020] KEELC 218 (KLR)

Environment and Land Court
14 December 2020
LGL. Gacheru
3,825 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a land title obtained through forged documents, returning the property to the rightful owner and awarding her compensation.

What this practically means

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Executive summary

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The Plaintiff sued for cancellation of the registration of Ruiru Kiu Block 2 (Githunguri) 2622 in the name of the 1st Defendant, including twenty subdivisions (plots 19506-19525), reversion of the title to herself, a perpetual injunction, and mesne profits of Kshs. 10,000/= per month from January 2018. She claimed through her deceased husband, an allottee of Githunguri Constituency Ranching Company Ltd, and produced a share certificate, clearance certificate and executed transfer. The 1st Defendant did not enter appearance or file a defence; the 2nd Defendant (the Land Registrar) denied fraud and sought indemnity if any were found. The court framed three issues: lawful ownership, entitlement to the orders sought, and costs. Relying on the root-of-title principle, the court found the Plaintiff had satisfactorily explained her title, corroborated by the Company's Chairman, who disowned the transfer documents used to register the 1st Defendant as forgeries; the 1st Defendant also never produced a share certificate evidencing membership. The registration having been procured by forgery, the court held it fraudulent and null and void ab initio, falling within the s.26(1) Land Registration Act exceptions, and invoked s.80(1) to order rectification. The court awarded mesne profits as specifically pleaded and proved, and granted costs to the successful Plaintiff. Judgment was delivered virtually on 14th December 2020 pursuant to COVID-19 directions, with the parties waiving Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Who is the lawful owner of the suit property

Holding

The Plaintiff, who traced her title through her deceased husband's shares in Githunguri Constituency Ranching Company Ltd to a share certificate, clearance certificate and transfer, is the lawful owner; the 1st Defendant's root of title was not established

Reasoning

The court applied the principle that a proprietor whose title is challenged must prove its root. The Plaintiff's chain (payment of Kshs.10,000, share certificate B528, clearance certificate, executed transfer) was corroborated by the Company Chairman (PW2). The documents used to register the 1st Defendant were forgeries, as PW2 denied signing the transfer, and the 1st Defendant never produced a share certificate evidencing membership. The 1st Defendant did not defend the suit, so the Plaintiff's evidence remained uncontroverted.

p. 3
02

Whether the 1st Defendant's title, though registered, can be impeached

Holding

Yes; the registration was procured by fraud and is null and void ab initio, falling within the s.26(1) Land Registration Act exceptions and warranting rectification under s.80(1)

Reasoning

Section 26(1) protects registered titles only except where acquired by fraud, misrepresentation, illegality or unprocedural acquisition. The forged transfer documents constituted deceitful practices amounting to fraud. Section 80(1) empowers the court to order cancellation of registrations obtained by fraud or mistake. The court therefore lifted the statutory protection and directed rectification in favour of the Plaintiff, the rightful owner.

p. 4
03

Whether the Plaintiff is entitled to mesne profits

Holding

Yes; mesne profits as pleaded at Kshs. 10,000/= per month from January 2018 were awarded

Reasoning

Mesne profits, defined in s.2 of the Civil Procedure Act as profits received or receivable by a person in wrongful possession, are awardable where a person is wrongfully deprived of property. The Plaintiff specifically pleaded mesne profits and proved the 1st Defendant's wrongful occupation, entitling her to the prayer as pleaded.

p. 5

Legal principles established

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  • When a 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
  • A title procured by fraud or misrepresentation, or acquired illegally or unprocedurally, is impeachable notwithstanding the indefeasibility of registered title
  • 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 entered for the Plaintiff against the Defendants jointly and severally in terms of prayers 1, 2, 3 and 4 of the Plaint dated 5th February 2018
  2. 2.Cancellation/annulment of the registration of the suit property in the name of the 1st Defendant, including the subdivisions into plots 19506-19525
  3. 3.Reversion of registration and proprietorship to the Plaintiff, Teresiah Wangari Mbugua
  4. 4.Perpetual injunction restraining the 1st Defendant and those claiming through her from dealing with or occupying the suit property
  5. 5.Mesne profits at Kshs. 10,000/= per month from January 2018
  6. 6.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80(1)
  • Civil Procedure ActSection 2 (definition of mesne profits)
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (4)

  • Hubert L. Martin & 2 Others vs Margaret J. Kamar & 5 Others
    [2016] eKLR
  • Munyu Maina vs Hiram Gathiha Maina
    Civil Appeal No.239 of 2009
  • Alice Chemutai Too vs Nickson Kipkurui Korir & 2 Others
    [2015] eKLR
  • Attorney General vs Halal Meat Products Limited
    [2016] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction (Land Registration Act, ss. 26, 80)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (21)

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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, "Teresia Wangari Mbugua v Jane Njeri Nduati & another [2020] KEELC 218 (KLR)", Case Analysis (2020). Not stated in judgment as excerpted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/218/eng@2020-12-14

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