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ELCDismissedBungoma ELC suit (amended plaint dated 14th May 2013)· [2020] KEELC 687 (KLR)

Dismas Munialo Kalamu v Martin Juma Kwata & 4 others [2020] KEELC 687 (KLR)

Environment and Land Court
12 November 2020
5,582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff sued for an eviction order against four defendants from land parcel EAST BUKUSU/NORTH SANG'ALO/77, asserting that he purchased the land from Joseph Sakwa Kweyu in November 2007 and obtained title in June 2008, whereupon the 1st defendant, the area Assistant Chief, placed a restriction on it. The defendants denied the purchase, contending the land was family land bought by the plaintiff's father in the 1970s and held for the family, including the plaintiff's three sisters who had sold portions to third parties. The court found that although the plaintiff was the registered proprietor and prima facie entitled to the protections of the Land Registration Act, his title was impeached under Section 26(1). No Land Control Board consent was obtained, rendering the sale agreement void for all purposes under Section 6(1) of the Land Control Act; the purchase price in the agreement had been doctored from Kshs 25,000 to Kshs 95,000; and the plaintiff's own testimony proved the fraud. The court further found, on an unpleaded issue which the parties had left to it, that the plaintiff held the land on a constructive trust for his sisters, following Odd Jobs v Mubia and Twalib Hatayan. Exercising its powers under Section 80 of the Land Registration Act, the court dismissed the claim, ordered the register rectified to reflect the trust, directed surrender of the title within 14 days with liberty to cancel on default, and awarded costs to the defendants.

Key legal issues

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01

Effect of absence of Land Control Board consent

Holding

The sale agreement underlying the plaintiff's title was void for all purposes, so no interest passed to the plaintiff

Reasoning

The sale agreement dated 2nd November 2007 was expressly subject to Land Control Board consent, which was never obtained; the plaintiff admitted this in cross-examination. Under Section 6(1) of the Land Control Act the agreement was void, and following Macfoy v United Africa Ltd, every proceeding founded on a void act is itself bad and incurably bad.

p. 4
02

Whether the plaintiff's title was fraudulently acquired and hence defeasible under Section 26(1) of the Land Registration Act

Holding

Yes; the plaintiff was registered as proprietor through a fraudulent scheme, so his title loses statutory protection

Reasoning

The defendants pleaded fraud. Evidence showed the father had purchased the suit land in the 1970s, the purchase price in the agreement was doctored from Kshs 25,000 to Kshs 95,000, no Land Control consent was obtained, and the plaintiff himself admitted the true price, aiding proof of the fraud. A title obtained through fraud is not protected by the Land Registration Act.

p. 6
03

Whether the plaintiff holds the suit land in trust for his sisters

Holding

Yes; a constructive trust arose in favour of the sisters notwithstanding that the trust issue was not pleaded

Reasoning

Evidence showed the land was family land purchased by the plaintiff's father, that the sisters acquired beneficial interests through the clan, and that the plaintiff was registered to administer the land for the family but took ownership. Relying on Odd Jobs v Mubia, the court could decide the unpleaded issue, and following Twalib Hatayan, imposed a constructive trust as an equitable remedy against wrongdoing.

p. 7
04

Whether the court could cancel the plaintiff's title suo motu

Holding

Yes; the court exercised its powers under Section 80 of the Land Registration Act to order rectification despite the defendants not asking for it

Reasoning

Having found the registration fraudulent, the court held it would be a dereliction of duty to leave the fraudulent title in place, and ordered rectification of the register to reflect the trust, sealing any loophole for the restriction to be stealthily removed.

p. 6

Legal principles established

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  • A registered proprietor whose root of title is under challenge must prove the legality of how the title was acquired, not merely dangle the title document
  • A sale of agricultural land without Land Control Board consent is void for all purposes and passes no interest
  • Courts may base their decision on an unpleaded issue if from the course of the trial the issue was left to the Court for decision
  • A constructive trust is an equitable remedy imposed against one who acquires property by wrongdoing to guard against unjust enrichment
  • Sanctity of title is not a vehicle for fraud or illegality; courts decline to protect fraudulently obtained titles

Court orders

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  1. 1.The plaintiff's claim is dismissed
  2. 2.An order directed to the Land Registrar Bungoma to rectify the register for land parcel NO EAST BUKUSU/NORTH SANG'ALO/77 so that it reflects that the plaintiff holds the same in trust for his sisters DIMINA NAFUNA KALAMU, JERIDA NAMAROME KALAMU and BILHA NANJALA KALAMU
  3. 3.The plaintiff shall within 14 days of the judgment surrender the title to the suit land to the Land Registrar Bungoma for that purpose
  4. 4.In default of surrender, the Land Registrar Bungoma shall be at liberty to cancel the title held by the plaintiff and issue another title reflecting the trust
  5. 5.The plaintiff shall meet the defendants' costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 28
  • Land Registration ActSection 25
  • Land Registration ActSection 80
  • Land Control ActSection 6(1)
  • Evidence ActSection 112

Cases cited (5)

  • MACFOY v UNITED AFRICA LTD
    1961 3 ALL E.R 1169
  • MUMU MAINA v HIRAM GATHIHA MAINA
    C.A Civil Appeal No 239 of 2009 [2013] eKLR
  • CHEMEY INVESTMENT LTD v A-G & OTHERS
    2018 eKLR
  • ODD JOBS v MUBIA
    1970 E.A 476
  • TWALIB HATAYAN TWALIB HATAYAN v SAID SAGGAR AHMED AL HELDY & OTHERS
    2015 eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (claim for eviction from EAST BUKUSU/NORTH SANG'ALO/77)

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, "Dismas Munialo Kalamu v Martin Juma Kwata & 4 others [2020] KEELC 687 (KLR)", Case Analysis (2020). Bungoma ELC suit (amended plaint dated 14th May 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/687/eng@2020-11-12

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