Miraflores Apartments Limited v Caleb Akwera & anothers [2020] KEELC 2232 (KLR)
The bottom line
#A Nairobi court cancelled a father's transfer of family land to his son, confirming the original 1990 buyer remained the lawful owner.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff is the lawful proprietor of the suit property
Yes. The 1st defendant sold the property to PW2 (or his nominee) at Kshs. 1,400,000/-, received full consideration, and executed the Indenture of Conveyance of 31st December, 1990 in favour of the plaintiff as PW2's nominee.
The court was satisfied that the full purchase price was paid: Kshs. 921,333.80 discharged the 1st defendant's East African Building Society loan, Kshs. 385,837.70 was paid to him directly, and the balance met his obligations under the agreement. The agreement allowed PW2 to nominate a transferee. The 1st defendant's joint venture/company theory was not supported by the agreement, and the plaintiff's document examiner confirmed the 1st defendant's signature on the sale documents.
Whether the registration of the 2nd defendant as proprietor was lawful
No. The registration of 19th January, 2011 pursuant to the Indenture of Conveyance of 22nd December, 2010 was illegal and fraudulent, and the 2nd defendant's title is null and void.
At the time of the 2010 transfer the property was registered in the plaintiff's name and charged to CFC Stanbic Bank Limited for Kshs. 15,000,000/-. The 1st defendant therefore had no interest to convey; applying nemo dat quod non habet, the transfer could only have occurred through fraud. Since a fraudulent title, however innocently acquired, is not protected, the 2nd defendant's title fell, despite his plea of transfer for love and affection.
Whether the plaintiff is entitled to the reliefs sought in the plaint
Yes. The plaintiff proved its case on a balance of probabilities and was granted the declaratory and injunctive reliefs in prayers (a) to (d).
Having established lawful proprietorship and the illegality of the 2nd defendant's title, the plaintiff satisfied the standard of proof on a balance of probabilities, entitling it to a declaration of ownership, a declaration that the 2nd defendant's registration was null and void, a permanent injunction, and a mandatory injunction for delivery up of the 2010 conveyance for cancellation.
Whether the defendants are entitled to the reliefs sought in their counter-claim
No. The counter-claim was dismissed.
The defendants failed to establish a valid claim over the suit property. Their assertion that the 1st defendant was the registered proprietor in December 2010 and could lawfully deal with the property could not stand against the evidence that title had vested in the plaintiff in 1990 upon payment of the full purchase price and registration.
Who is liable for the costs of the suit
The plaintiff, having succeeded, was awarded the costs of both the suit and the counter-claim.
Costs follow the event. No reason existed to depart from the general rule since the plaintiff succeeded on its claim and the defendants' counter-claim was dismissed.
Legal principles established
#- Nemo dat quod non habet - one can only transfer an interest in land that one has; a transfer by a non-owner is void.
- A fraudulent title, however innocently acquired, is not protected by law.
Court orders
#- 1.Judgment is entered for the plaintiff against the defendants in terms of prayers (a), (b), (c) and (d) in the plaint dated 11th November, 2011.
- 2.The 2nd defendant shall deliver up to the Chief Land Registrar the Indenture of Conveyance dated 22nd December, 2010 registered in Vol N. 92 Folio 58/1 File No. 26555 held by him for cancellation within 30 days.
- 3.The Chief Land Registrar shall cancel the registration of the 2nd defendant as the owner of L.R No. 2/344(Original No. 2/45b/2/3/3) in Vol N 92 Folio 58/1 File No. 26555.
- 4.The defendants’ counter-claim is dismissed.
- 5.The plaintiff shall have the costs of the suit and the counter-claim.
- Jurisdiction invoked
- Original civil jurisdiction over land disputes (title to L.R No. 2/344); no specific constitutional provision cited in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miraflores Apartments Limited v Caleb Akwera & anothers [2020] KEELC 2232 (KLR)", Case Analysis (2020). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2232/eng@2020-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.