Samuel Musau Wambua v Samuel Kisigei Lasoi & 3 others [2020] KEELC 2115 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff is the registered owner of the suit property and whether he sold it to the 1st defendant
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
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.
Whether fraud and collusion by the 1st and 3rd defendants was proved
Fraud and collusion were not proved to the required standard
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.
Whether the register should be rectified and the charge to Barclays Bank cancelled
Rectification of the register in favour of the plaintiff was ordered and the 2nd defendant's charge cancelled
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.
Legal principles established
#- 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
#- 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.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.A declaration that the plaintiff is the owner and entitled to possession of the property known as Nairobi/Block 97/524
- 4.Costs of the suit to the plaintiff with interest
- 5.The 1st and 2nd defendants' counterclaim is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.