Margaret Kamene Mulwa & another v Paradise Bay Limited & 3 others [2020] KEELC 1548 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs lawfully acquired the suit property and hold a valid title
Yes. The plaintiffs proved a valid sale agreement with the original allottee, full payment, registration and issuance of title on 28 January 1997, and remain in possession.
The court found a valid agreement of 14 January/20 February 1996 between the plaintiffs and Mariam Hamisi Mwamajeni, payment of the purchase price through Musinga & Company Advocates, registration and title issuance in 1997, and continued possession with developments. The register and a 2014 official search confirmed the plaintiffs as proprietors, and the defendants produced no tangible evidence of illegality in the plaintiffs' acquisition.
Whether the registration of the 2nd defendant and subsequent transfer to the 1st defendant was lawful
No. The transmission was a fraudulent ploy; the property was no longer available for transmission since the plaintiffs held the title.
Once the plaintiffs were registered in 1997, the land could not revert to the deceased to enable transmission to the 2nd defendant. No evidence explained how the deceased's name was re-entered in the register. Documents from the NLC and DCI recommending revocation were of no legal effect and the plaintiffs were never heard. The succession in the Kadhi's Court was a ploy to immediately transfer the land to the 1st defendant.
Whether the 1st defendant is an innocent purchaser for value without notice
No. Its director resided near the property and knew the plaintiffs' worker was in occupation, so it could not claim innocence.
DW1 admitted he resides very close to the suit property and knew the succession cause; the property had a worker's house and borehole and was in the plaintiffs' occupation. A purchaser with such knowledge could not be an innocent purchaser for value without notice, and its title was impeachable under Section 26(1) of the Land Registration Act for fraud to which it was privy.
Legal principles established
#- Neither the police nor the National Land Commission has the power to cancel a registered proprietor's title without due process and without affording the proprietor a hearing
- A title acquired illegally, unprocedurally or through a corrupt scheme is impeachable under Section 26(1) of the Land Registration Act, and a purchaser with notice of occupation cannot claim innocence
- Vague and general allegations of fraud against a registered proprietor, without tangible evidence, will not displace a valid title
Court orders
#- 1.A declaration that the plaintiffs are the rightful, lawful and bona fide owners of the property known as KWALE/DIANI/99
- 2.An order compelling the 3rd defendant to cancel and/or revoke the title to the suit property in the name of the 1st defendant and to delete all entries in the register in the name of the 1st and 2nd defendants and rectification of the register to restore the plaintiffs' names therein
- 3.An order of permanent injunction in terms of prayer (d) of the amended plaint
- 4.The 1st and 2nd defendants' counter-claim dismissed with costs
- 5.The plaintiffs shall have costs of the suit
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution of Kenya (Environment and Land Court); not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Kamene Mulwa & another v Paradise Bay Limited & 3 others [2020] KEELC 1548 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1548/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.