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ELCPartially Allowed· [2020] KEELC 2346 (KLR)

Josephat Doe Okiria v Ludovicius Oriama Okitoyi & another [2020] KEELC 2346 (KLR)

Environment and Land Court of Kenya
27 May 2020
5,866 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a buyer's land titles because the sellers had no legal authority to sell the family land in the first place.

What this practically means

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Executive summary

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The plaintiff sued the 1st defendant by plaint dated 6th August 2009 seeking a declaration that the 1st defendant's acts on land parcel SOUTH/TESO/OSURETTE/2427 were unlawful, an injunction restraining entry or construction, damages, costs and interest, on the basis that he was the registered owner of that commercial parcel in Malaba Township obtained in March 2009. The 2nd defendant applied on his own motion and was enjoined by the Chief Magistrate in April 2010; the plaint was never amended. The defendants denied the claim and by a joint defence and counter-claim alleged that the plaintiff fraudulently procured registration of parcels 2420, 2426, 2427 and 2428 from parcel 1512, and sought cancellation of those titles, restoration of parcel 1512, mandatory and prohibitory injunctions over parcel 2301, and general and exemplary damages. The court first held that the 2nd defendant had been improperly enjoined: a plaintiff is dominus litis and, having sought no relief against him and never amended the plaint, his name was expunged without costs. On the single issue of whether the plaintiff obtained good title to parcel 2420 and its sub-divisions, the court found fraud: the 1993 sale agreement was signed by persons who were not registered owners, one of whom had died, and by a widow with no grant, amounting to intermeddling contrary to Section 45 of the Law of Succession Act; the 2008/2009 mutation form bore the names of two deceased proprietors. Relying on Macfoy v United Africa Co Ltd, the derivative titles were nullities, and Article 40(6) afforded no protection. The plaintiff's suit was dismissed; the counter-claim was allowed only in part - a declaration of fraud, cancellation of the titles, restoration of parcel 1512 and costs. General and exemplary damages were refused, and the injunctive reliefs over parcel 2301 were refused since its registered proprietor was a non-party, at liberty to sue separately.

Key legal issues

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01

Whether the plaintiff obtained good title to parcel SOUTH TESO/OSURETTE/2420 and its sub-divisions 2426, 2427 and 2428

Holding

No; the title was procured through fraud. The 1993 sale agreement was executed by persons who were not registered owners, one of whom (Christopher Adeke) had died, and BIBIANA ISWAN ADEKE had no grant of representation, amounting to intermeddling with a deceased person's estate under Section 45 of the Law of Succession Act. The mutation form of 2008/2009 bearing the names of two deceased proprietors was also fraudulent.

Reasoning

The court traced the register: parcel 1512 was registered to Christopher Adeke, Raphael Okware and Dismas Olumasi, yet Adeke died in 1990 and Okware in 1997, before the 2008/2009 sub-division instructions. The widow transacted without a grant. Fraud vitiates the resulting title; the plaintiff conceded the sellers were not the registered owners and that succession had not been done.

p. 5
02

Whether the 2nd defendant was properly enjoined as a defendant

Holding

No. The plaintiff sought no relief against him, the plaint was never amended, and a plaintiff cannot be compelled to sue an unwilling adversary. His name was expunged.

Reasoning

Order 1 Rule 10(2) permits joinder of necessary parties, but Order 1 Rule 10(4) requires the plaint to be amended on addition of a defendant, which was not done. The joinder was made on the 2nd defendant's own application, not the plaintiff's, and the plaintiff filed no claim against him; his defence and counter-claim against a suit in which he was not a party was un-procedural.

p. 5
03

Whether the defendant was entitled to general and exemplary damages for fraud

Holding

No. The general damages claim was a blanket claim and exemplary damages did not fall within the Rookes v Barnard categories.

Reasoning

The defendant specified no basis for general damages. Exemplary damages are exceptional, limited to oppressive state action, profit-making conduct exceeding compensation, and statutory authority; the transfers to the plaintiff were voluntary, and it would be harsh to punish him with an exemplary award notwithstanding his role in the fraud.

p. 7
04

Whether the defendant was entitled to mandatory and prohibitory injunctions over parcel SOUTH TESO/OSURETTE/2301

Holding

No. That parcel's registered proprietor was the 2nd defendant, who had been struck out; he is at liberty to sue separately.

Reasoning

The court found the injunctions unavailable because the affected parcel belonged to a non-party. The counter-claim relief in respect of parcel 2301 could not issue in proceedings from which the registered proprietor had been expunged.

p. 7

Legal principles established

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  • A title procured by fraud loses the protection of the Land Registration Act and may be cancelled
  • Anything founded on an invalid root is itself invalid; a nullity cannot sustain a valid derivative title
  • A plaintiff is dominus litis and cannot be compelled to sue a party against whom he seeks no relief
  • A party who applies on his own motion to be enjoined is not entitled to costs if improperly joined

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.A declaration that the registration of the plaintiff as proprietor of land parcels SOUTH TESO/OSURETTE/2420, 2426, 2427 and 2428 was fraudulent and the same are cancelled, and the Land Registrar directed to restore parcel SOUTH TESO/OSURETTE/1512 to the previous owners as at 12th November 1990
  3. 3.The defendant granted costs of the dismissed suit and the Counter-Claim
  4. 4.The defendant's claim for general and exemplary damages is dismissed
  5. 5.The name of Faustino Opuru Ojuloto (previously the 2nd defendant) expunged from the record and no orders made on parcel SOUTH TESO/OSURETTE/2301, including the prayers for mandatory and prohibitory injunctions

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 7; Order 1 Rule 10(2); Order 1 Rule 10(4); Order 18 Rule 7
  • Land Registration ActSections 24, 25, 26
  • Registered Land Act (repealed)Sections 27, 28, 143
  • Law of Succession ActSection 45
  • Constitution of Kenya, 2010Article 40(6)

Cases cited (3)

  • CIVICON LIMITED v KIVUWATT LIMITED & 2 OTHERS
    2015 eKLR
  • BENJAMIN LEONARD MACFOY v UNITED AFRICA CO LTD
    1961 3 All E.R 1179
  • ROOKES v BARNARD
    1964 AC 1129
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a transferred suit concerning land parcel SOUTH/TESO/OSURETTE/2427; no constitutional or statutory provision expressly cited as the basis of jurisdiction

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, "Josephat Doe Okiria v Ludovicius Oriama Okitoyi & another [2020] KEELC 2346 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2346/eng@2020-05-27

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