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ELCPartially AllowedELC Suit No. 76 of 2010 (lead file), consolidated with ELC No. 174 of 2010· [2020] KEELC 2115 (KLR)

Samuel Musau Wambua v Samuel Kisigei Lasoi & 3 others [2020] KEELC 2115 (KLR)

Environment and Land Court
11 June 2020
4,715 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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Kenya's Environment and Land Court restored a landowner's stolen title and cancelled a bank charge, but refused damages because fraud was not strictly proved.

What this practically means

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Executive summary

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This is a first-instance decision of the Environment and Land Court at Nairobi in consolidated suits (ELC 76 of 2010 as lead file, consolidated with ELC 174 of 2010 by order of Koome J) concerning competing titles to Nairobi/Block 97/524 (Tassia). David Musau Wambua, the registered proprietor since a lease issued on 22 February 1990, sought rectification of the register, cancellation of a charge granted by the 1st defendant to Barclays Bank, a declaration of ownership and general damages, alleging fraud and collusion with Land Registry officials. The 1st and 2nd defendants, who counterclaimed for injunction, cancellation of the plaintiff's title and damages for trespass, maintained the 1st defendant bought the land in 2007 from 'David Musau Wambua'. Komingoi J found, on the evidence of the Land Registrar (DW2), that the plaintiff's title was genuine and the surrendered title a forgery, and that the signature on the transfer documents did not belong to the plaintiff - the burden having shifted to the defendants once the plaintiff denied the sale. However, the particulars of fraud and collusion pleaded against the 1st and 3rd defendants were not proved to the strict standard required (R.G. Patel; Vijay Morjaria; Dennis Noel Mukhulo Ochwada), so general damages were refused. Relying on sections 26(1)(b) and 80(1) of the Land Registration Act, 2012 and Elijah Makeri Nyangw'ra and Alice Chemutai Too, the court held the 1st defendant's unprocedurally obtained title unprotected and the Barclays charge invalid, the parties having failed to exercise due diligence. The court ordered rectification of the register to the plaintiff, nullified the charge, declared the plaintiff owner entitled to possession, awarded the plaintiff costs with interest, and dismissed the counterclaim with costs.

Key legal issues

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01

Whether the plaintiff is the registered owner of the suit property and whether he sold it to the 1st defendant

Holding

The plaintiff is the genuine registered owner and did not sell the property; the 1st defendant's title derives from a forged cancellation of the plaintiff's title

Reasoning

The plaintiff produced his letter of offer, lease, receipts and certificate of lease of 22 February 1990. The Land Registrar (DW2) confirmed the plaintiff's title was genuine and that the title surrendered for cancellation was a forgery whose signature did not match the green card. Having denied the sale, the burden shifted to the 1st and 2nd defendants to prove the transferor's signature was the plaintiff's, which they failed to do. The 1st defendant fell victim to fraudsters.

p. 5
02

Whether fraud and collusion by the 1st and 3rd defendants was proved

Holding

Fraud and collusion were not proved to the required standard

Reasoning

Although particulars of fraud were pleaded, the plaintiff did not adduce evidence proving them; no handwriting expert was called and no collusion with registry officials was shown. The court adopted the strict standard of proof of fraud from Dennis Noel Mukhulo Ochwada, R.G. Patel and Vijay Morjaria. Consequently the claim for general damages failed.

p. 5
03

Whether the register should be rectified and the charge to Barclays Bank cancelled

Holding

Rectification of the register in favour of the plaintiff was ordered and the 2nd defendant's charge cancelled

Reasoning

Under sections 80(1) and 26(1)(b) of the Land Registration Act, 2012, a registration obtained by fraud or mistake may be cancelled, and a title acquired unprocedurally is unprotected. The 1st and 2nd defendants failed to exercise due diligence, and the 1st defendant was not in possession. Following Alice Chemutai Too, the charge founded on an unprocedurally obtained title cannot stand.

p. 6

Legal principles established

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  • Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required
  • Fraud must be specifically pleaded and distinctly proved, and cannot be inferred from facts
  • A title obtained illegally, unprocedurally or through a corrupt scheme is not protected by Section 26(1) of the Land Registration Act even if the holder is innocent
  • Where a party denies a signature, the burden shifts to the party asserting the signature is genuine

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 land known as 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 to the plaintiff with interest
  5. 5.The 1st and 2nd defendants' counterclaim is dismissed 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
  • Elijah Makeri Nyangw'ra vs Stephen Njuguna & Another
    [2013] eKLR
  • R. G. Patel vs Lalji Makanji
    (Supra)
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (Environment and Land Court Act); suit commenced by plaint with counterclaim, consolidated by order of L. J. M. Koome dated 17 September 2010

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, "Samuel Musau Wambua v Samuel Kisigei Lasoi & 3 others [2020] KEELC 2115 (KLR)", Case Analysis (2020). ELC Suit No. 76 of 2010 (lead file), consolidated with ELC No. 174 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2115/eng@2020-06-11

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