Peter Masakwi Mogori v Kenya Commercial Bank Limited & 2 others [2020] KEELC 1489 (KLR)
The bottom line
#Kenya's Environment and Land Court voided a bank's land sale for fraud, restoring the deceased owner's land to his family after thirty years.
What this practically means
#Executive summary
#Key legal issues
#Capacity of the plaintiff to sue as personal representative
The plaintiff, holding letters of administration ad litem, had the requisite capacity to sue on behalf of the deceased's estate.
The court found it common ground that the registered proprietor was deceased. Relying on Tronistik Union International v Jane Mbeyu, Omari Kaburu v ICDC, Section 2 of the Civil Procedure Act and Section 82(a) of the Law of Succession Act, and Order 4 Rule 4 and Order 24 Rule 5 of the Civil Procedure Rules, the plaintiff demonstrated he was the legal representative and thus had capacity.
Jurisdiction over a suit alleged to be statute barred
The court had jurisdiction; the suit was not statute barred because fraud was pleaded as discovered in 2009 under Section 26 of the Limitation of Actions Act.
Applying the Supreme Court's decision in Samwel Kamau Macharia and Republic v Karisa Chengo, jurisdiction flows from the Constitution and legislation. Title to land falls under Article 162(2)(b) and Section 13 of the ELC Act. Fraudulent sale discovered in 2009 brought the claim within Section 26 of the Limitation of Actions Act, so the claim was not time barred and consent could not oust jurisdiction.
Lawfulness of the 1st defendant's sale and transfer of the suit land
The sale and transfer were fraudulent, irregular and null and void; the 2nd defendant's title was impeached and subsequent dealings, including the charge to the 3rd defendant, were nullified.
DW1 and DW2's cross-examination revealed gaps: no notice of sale, no reserve price or valuation, no proof of payment of the balance, no Land Control Board consent, and no notification of sale in the bank's records. Applying Munyu Maina and Samwel Kamere, the purchasers failed to prove legality of the acquisition; fraud was distinctly pleaded and proved, so the title could not stand under Section 26(1) of the Land Registration Act exceptions.
Legal principles established
#- A grant is what clothes a person with locus standi to sue on behalf of a deceased's estate
- Parties cannot by consent confer jurisdiction on a court where none exists
- A registered proprietor whose root of title is under challenge must prove the legality of how the title was acquired, beyond the instrument of title
- Fraud must be distinctly pleaded and proved to the requisite standard to impeach a certificate of title
Court orders
#- 1.Judgment entered for the plaintiff against the 1st, 2nd and 3rd defendants jointly and severally in terms of reliefs (i), (ii), (iii) and (iv) sought in the plaint dated 10th February 2010 (declaration that the sale and transfer of the suit land by the 1st to the 2nd defendant is null and void; restoration of title to the deceased's estate with rectification of the register; nullification of all subsequent dealings including the charge to the 3rd defendant; costs)
- 2.The 2nd defendant's counter claim dated 26th March 2010 dismissed
- 3.The 1st, 2nd and 3rd defendants to bear the costs of the suit and counter claim
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Masakwi Mogori v Kenya Commercial Bank Limited & 2 others [2020] KEELC 1489 (KLR)", Case Analysis (2020). Original plaint dated 10th February 2010, transferred from Kisii ELC on 29th March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1489/eng@2020-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.