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ELCPartially AllowedCivil Suit (Thika ELC), Plaint dated 5th September 2017· [2020] KEELC 1584 (KLR)

Joseph Wachira Mbiti v George Muhoho Wanjiru & another [2020] KEELC 1584 (KLR)

Environment and Land Court
23 July 2020
LGL. Gacheru
3,479 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 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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By a Plaint dated 5th September 2017, Joseph Wachira Mbiti sought a declaration that Entries Nos. 4, 5, 6 and 7 in the register for title No. NACHU/MIKUYUINI/107 were fraudulent and void, cancellation of those entries, restoration of his name as registered proprietor, and costs. He alleged he was allocated the land by the defunct County Council of Kiambu in 1989, received a title deed on 9th October 1991, and that between 2010 and 2016 the Defendants conspired to fraudulently transfer the property, first to the 1st Defendant on 6th September 2016 using forged documents (a wrong ID number, PIN and photographs), and then to the 2nd Defendant barely 37 days later. Only the 1st Defendant filed a defence denying fraud; neither Defendant attended the hearing on 23rd July 2019 despite service, and the Plaintiff testified alone. The court, L. Gacheru J, found that fraud had been strictly pleaded and proved, that the transfer documents were forgeries, and that the 1st Defendant therefore acquired no good title capable of passing to the 2nd Defendant, whose certificate of title was accordingly null and void. Applying sections 26(1) and 80(1) of the Land Registration Act, 2012, the court entered judgment for the Plaintiff as prayed, cancelled the impugned title, and directed the Land Registrar, Kiambu (correcting the Plaint's reference to Thika) to rectify the register and restore the Plaintiff as proprietor, with costs to the Defendants. The judgment was delivered online on 23rd July 2020 under COVID-19 directions.

Key legal issues

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01

Whether the transfer of the suit property to the 1st Defendant was fraudulent and the documents used were forgeries

Holding

The court found the transfer documents (ID card, passport photograph, PIN certificate and signature on the transfer) were forgeries and that the Plaintiff never transferred the property

Reasoning

The Plaintiff testified he retained the original title deed and never sold the land. He produced his genuine ID and PIN certificates and demonstrated that the documents used in the transfer bore a different ID number, a different PIN and photographs that were not his. The Defendants, though served, did not attend court or challenge this evidence, leaving the court with no reason to doubt the Plaintiff's uncontroverted testimony.

p. 4
02

Whether the 2nd Defendant acquired a valid title from the 1st Defendant

Holding

The 2nd Defendant's certificate of title was null and void because the 1st Defendant had no good title to pass

Reasoning

Relying on section 26(1) of the Land Registration Act, the court held that a title acquired fraudulently is impeachable. Having impeached the 1st Defendant's title, the court reasoned that no interest could pass to the 2nd Defendant, following the Esther Ndegi Njiru decision. The nemo dat principle underlies the reasoning: a fraudulent transferee without good title cannot confer title on a subsequent purchaser.

p. 4
03

The standard of proof for allegations of fraud

Holding

Fraud must be strictly pleaded and proved on a standard higher than the balance of probabilities

Reasoning

The court cited John Mbugua Gitau v Simon Parkoyiet Mokare & 4 others, which restated Emfil Ltd v Registrar of Titles, that allegations of fraud are serious and must be strictly pleaded and strictly proved. The court noted the Plaintiff had pleaded particulars of fraud in paragraph 9 of the Plaint and found the standard met on the evidence.

p. 4
04

Whether the register should be rectified and the Plaintiff restored as proprietor

Holding

The court ordered rectification under section 80(1) of the Land Registration Act, directing cancellation of the impugned entries and restoration of the register in the Plaintiff's favour by the Land Registrar, Kiambu

Reasoning

Section 80(1) empowers the court to order rectification where a registration was obtained by fraud or mistake. Having found the registrations in favour of both Defendants were procured by fraud, the court directed cancellation of the certificate of title held by the 2nd Defendant and restoration of the register to the Plaintiff, correcting the registry from Thika to Kiambu.

p. 4

Legal principles established

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  • Allegations of fraud must be strictly pleaded and proved on a standard higher than the ordinary balance of probabilities
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership but may be impeached on the ground of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • A party who obtains no good title by fraud cannot pass a good title to a subsequent transferee
  • Under section 80(1) of the Land Registration Act, a 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 as prayed in prayers (a) and (b) of the Plaint
  2. 2.Declaration that the transfers of the suit property captured in Entries Nos. 4, 5, 6 and 7 of the Register for NACHU/MIKUYUINI/107 were fraudulent, irregular, illegal, unlawful, null and void
  3. 3.The Land Registrar, Kiambu (not Thika) directed to cancel Entries Nos. 4, 5, 6 and 7 in the Register and restore the Register in favour of the Plaintiff
  4. 4.Costs of the suit to be borne by the Defendants

Authorities

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Legislation

  • Registered Land Act (Cap 300, Laws of Kenya) (repealed)Section 27
  • Registered Land Act (Cap 300, Laws of Kenya) (repealed)Section 28
  • Land Registration Act, 2012Section 24(a)
  • Land Registration Act, 2012Section 25(1)
  • Land Registration Act, 2012Section 26(1)
  • Land Registration Act, 2012Section 80(1)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (3)

  • John Mbugua Gitau…Vs… Simon Parkoyiet Mokare & 4 others
    (2017) eKLR
  • Emfil Ltd …Vs... Registrar of Titles
    null
  • Esther Ndegi Njiru & another …Vs… Leornard Gatei
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (Plaint under Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Joseph Wachira Mbiti v George Muhoho Wanjiru & another [2020] KEELC 1584 (KLR)", Case Analysis (2020). Civil Suit (Thika ELC), Plaint dated 5th September 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1584/eng@2020-07-23

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