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ELCPartially AllowedELC Suit No. 76 of 2010 (consolidated with ELC No. 174 of 2010)· [2020] KEELC 1646 (KLR)

David Musau Wambua v Samuel Kisigei Lasoi & 2 others [2020] KEELC 1646 (KLR)

Environment and Land Court
11 June 2020
4,716 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Nairobi court returned a stolen-title property to its true owner and cancelled the bank charge, but refused damages because fraud wasn't strictly proved.

What this practically means

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Executive summary

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The Environment and Land Court at Nairobi (L. Komingoi, J) determined consolidated suits ELC 76 of 2010 (lead file) and ELC 174 of 2010 concerning the ownership of Nairobi/Block 97/524. The plaintiff, David Musau Wambua, acquired the property in 1990 from Tysons Limited and held a certificate of lease dated 22 February 1990. In 2007, a purported transfer in the name of 'David Musau Wambua' was effected to the 1st defendant, who charged the property to Barclays Bank. The plaintiff disclaimed the sale, alleging fraud. The Land Registrar (DW2) testified that the plaintiff's title was genuine, the cancelled title was a forgery, and most transfer documents were missing from the registry file. The court held the plaintiff was the registered owner who never sold the property; since he denied selling, the burden shifted to the 1st and 2nd defendants to prove the signature on the transfer was his, which they failed to do. However, the plaintiff did not prove fraud or collusion between the 1st and 3rd defendants to the strict standard required, so general damages were refused; the 1st defendant was found to be a victim of fraudsters. Applying section 80 of the Land Registration Act, 2012 and section 26(1)(b), the court ordered rectification of the register in the plaintiff's favour, cancellation of the charge to Barclays Bank, and issued a declaration of ownership and possession. The 1st and 2nd defendants' counterclaim was dismissed. The plaintiff received costs of the suit and interest. Judgment delivered 11 June 2020.

Key legal issues

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01

Whether the plaintiff was the registered owner of Nairobi/Block 97/524 and whether he sold it to the 1st defendant

Holding

The court found the plaintiff is the genuine registered owner and never sold the property; the 1st defendant's title was a forgery procured by fraudsters

Reasoning

The plaintiff produced his certificate of lease of 22 February 1990 and the acquisition documents. DW2, the Land Registrar, confirmed the plaintiff's title was genuine and that the title surrendered for cancellation was a forgery whose signature did not tally with the green card. The 1st defendant admitted the photograph on the transfer was not the plaintiff's. Since the plaintiff denied selling, the burden shifted to the 1st and 2nd defendants to prove the signature was the plaintiff's, which they failed to do.

p. 5
02

Whether the plaintiff proved fraud and collusion between the 1st and 3rd defendants

Holding

The plaintiff failed to prove the pleaded particulars of fraud or collusion to the requisite standard; the 1st defendant was a victim of fraudsters

Reasoning

Although particulars of fraud were pleaded, the plaintiff did not adduce evidence of collusion with Lands Registry officials. The identity card number on the transfer matched the plaintiff's. Applying the strict standard for proving fraud, the court held the plaintiff did not discharge his burden, so no general damages were due.

p. 5
03

Whether the charge in favour of the 2nd defendant was valid and whether the register should be rectified

Holding

The charge was invalid because it was founded on a title obtained unprocedurally; the register was to be rectified in the plaintiff's favour under section 80 of the Land Registration Act

Reasoning

Section 80(1) permits rectification where registration was obtained by fraud or mistake. The 1st and 2nd defendants failed to exercise due diligence before the transaction; had they done so, they would have discovered the vendor was an impostor. The 1st defendant was not in possession, and a charge founded on an impeached title cannot stand.

p. 6

Legal principles established

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  • Allegations of fraud must be strictly proved to a standard above a mere balance of probabilities, and fraudulent conduct must be distinctly alleged and distinctly proved
  • A title obtained illegally, unprocedurally or through a corrupt scheme loses statutory protection under section 26(1)(b) of the Land Registration Act even as against an innocent purchaser
  • A charge founded on a title obtained unprocedurally is invalid and liable to be cancelled

Court orders

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  1. 1.An order directing the Registrar Lands Office Nairobi to rectify the register to reflect David Musau Wambua as the legally registered proprietor of Nairobi/Block 97/524
  2. 2.An order directing the Registrar Lands Office Nairobi to nullify and/or cancel the charge effected upon Nairobi/Block 97/524 by the 1st defendant to the 2nd defendant, Barclays Bank of Kenya Limited
  3. 3.A declaration that the plaintiff is the owner and entitled to possession of the property known as Nairobi/Block 97/524
  4. 4.Costs of the suit and interest to the plaintiff
  5. 5.Dismissal of the 1st and 2nd defendants' counterclaim with costs

Authorities

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Legislation

  • Registered Land Act (repealed)section 143(1)(2)
  • Land Registration Act, 2012section 80(1)
  • Land Registration Act, 2012section 26(1)
  • Evidence Actsections 107, 108 and 109

Cases cited (9)

  • Samuel Odhiambo Oludhe & 2 others vs Jubilee Jumbo Hardware & Another
    [2018] eKLR
  • Kibiro Wagoro Makumi vs Francis Nduati Macharia & Another
    [2018] eKLR
  • Alice Chemutai Too vs Nickson Kipkirui Korir & 2 Others
    [2015] eKLR
  • Dennis Noel Mukhulo Ochwada & Another vs Elizabeth Murungari Njoroge & Another
    [2018] eKLR
  • Richard Akwesera Onditi vs Kenya Commercial Finance Company Limited
    [2010] eKLR
  • Job Muriithi Waweru vs Patrick Mbatia
    [2008] eKLR
  • R. G. Patel vs Lalji Makanji
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Elijah Makeri Nyangw'ra vs Stephen Njuguna & Another
    [2013] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to ownership, title and rectification of land

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "David Musau Wambua v Samuel Kisigei Lasoi & 2 others [2020] KEELC 1646 (KLR)", Case Analysis (2020). ELC Suit No. 76 of 2010 (consolidated with ELC No. 174 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1646/eng@2020-06-11

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