Alice Wambui Nganga v John Ngure Kahoro & another [2020] KEELC 1992 (KLR)
The bottom line
#A Kenyan court cancelled a land transfer made under an unregistered power of attorney, ordering the land returned or its current market value paid.
What this practically means
#Executive summary
#Key legal issues
#Validity of the sale and transfer executed under an unregistered power of attorney
The sale agreement, Land Control Board consent and transfer were invalid because the 1st Defendant acted on a power of attorney that had not been registered, so he lacked capacity.
The Court noted the chronology: the power of attorney was dated 20th September 2010, but the consent, sale agreement and transfer were all executed before it was registered, with registration being sought as late as 2011. Relying on Section 4 of the Registration of Documents Act and Francis Mwangi Mugo v David Kamau Gachago, the Court held registration vests capacity in the donee; without it, acts done are a nullity. The Defendants' documents also contained inconsistent consideration figures.
Whether the Plaintiff orally revoked the power of attorney
No - the Court found no evidence of revocation of the power of attorney.
The Plaintiff testified she orally revoked the power of attorney, but produced no evidence of revocation or of deregistering it at the Lands Office. Applying the evidentiary rule that he who alleges must prove, the Court rejected the claim of revocation. The invalidity of the sale therefore rested on non-registration and lack of capacity, not on revocation.
Whether the 2nd Defendant's certificate of title is indefeasible
No - the title was impeached because it was acquired through an invalid sale agreement and transfer.
Although a registered proprietor holds an absolute and indefeasible title, Section 26(1) of the Land Registration Act permits impeachment where acquisition was unprocedural. Having found the underlying contract and transfer invalid, the Court invoked Section 80(1) (echoing Section 143(1) of the repealed Cap 300) to cancel the title and order rectification of the register in the Plaintiff's favour.
Legal principles established
#- A power of attorney conferring rights over immovable property must be registered before it can be used, and until registration the donee lacks capacity to deal with the property.
- A title obtained through an invalid sale agreement and transfer may be impeached and the register rectified under Section 80(1) of the Land Registration Act.
Court orders
#- 1.Judgment entered for the Plaintiff against the Defendants jointly and severally in terms of prayers no. (a), (b) and (d) of the Plaint dated 17th June 2016
- 2.The 1st and 2nd Defendants to transfer back Ruiru/Mugutha Block 1/T.850 to the Plaintiff, or in the alternative pay the Plaintiff the equivalent of the current market value of such a parcel of land within the same area
- 3.Costs of the suit to the Plaintiff
- 4.Interest thereon
- Jurisdiction invoked
- Original civil suit over title to land under the Environment and Land Court's jurisdiction (Land Registration Act; Civil Procedure Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alice Wambui Nganga v John Ngure Kahoro & another [2020] KEELC 1992 (KLR)", Case Analysis (2020). Not stated in judgment (Plaint dated 17th June 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1992/eng@2020-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.