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ELCPartially AllowedCivil Case No. 139 of 2004· [2020] KEELC 2575 (KLR)

Swalehe Mohamed Mwakiruwa v Samuel Njoroge Waruhiu [2020] KEELC 2575 (KLR)

Environment and Land Court
12 May 2020
7,730 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled land titles traced to a fraudulently obtained court order, ruling that paying for land without proper checks does not protect a buyer.

What this practically means

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Executive summary

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This Environment and Land Court judgment (A. Omollo J) resolves a land dispute over Kwale/Galu Kinondo/674. The original plaintiff, Swalehe Mwakiruwa, sued Samuel Njoroge Waruhiu in 2004 seeking cancellation of Waruhiu's title; on 22 July 2004 an order was obtained cancelling the title and registering Swalehe, who promptly sold to Dr. Kawaljeet Singh Rekhi (2nd defendant), who subdivided and sold to Luciana Parazzi (3rd defendant). Waruhiu counter-claimed against all three. Swalehe closed his case without calling evidence; Rekhi and Parazzi defended, each claiming innocent purchaser status and indemnity against each other. The court held the order of 22 July 2004 was unlawfully obtained: the consent founding it was not on record and was never adopted, and Swalehe and his advocate were criminally convicted for fraudulently obtaining and uttering it. Withdrawal of the application to set the order aside did not validate it. The 2nd defendant failed the innocent purchaser test, having bought three days after the tainted registration and without proven due diligence, so no valid title passed to the 3rd defendant, whose titles were cancelled. General damages of Kshs.15 million for trespass were refused for lack of proved loss. The 3rd defendant was awarded a refund of Kshs.16,524,000 from the 2nd defendant with interest, the court rejecting her Kshs.90 million claim and the 2nd defendant's attempt to shift indemnity to the Government, which was never joined. The original claim was dismissed; judgment entered on the counter-claim for vacant possession and rectification of the register, with costs against Swalehe.

Key legal issues

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01

Validity of the order of 22 July 2004 used to cancel the defendant's title

Holding

The order was unlawfully obtained; the 1st defendant acquired title using it, so his title was invalid

Reasoning

The consent said to found the order was not on record and was never adopted; the trial judge noted the order was obtained in the absence of any proceedings. The 1st defendant and his advocate were criminally convicted for fraudulently obtaining and uttering the order. Since the impugned order was interlocutory in the pending suit, its validity could be raised at trial despite withdrawal of the setting-aside application; the burden lay on those asserting its validity.

p. 6
02

Whether the 1st defendant had a valid title to pass to the 2nd and 3rd defendants

Holding

No; the 2nd defendant was not an innocent purchaser for value, having failed due diligence, and could pass no valid title to the 3rd defendant

Reasoning

The 2nd defendant bought three days after registration of the tainted title, did not annex the search he claimed to have done, and did not exercise due diligence. Fraud was sufficiently in issue through the counter-claim pleading that the 1st defendant had no good title to pass. Section 39 RLA could not be read in isolation, and section 143 gave no protection to a non-possessing, non-diligent purchaser.

p. 7
03

Compensation payable to the 3rd defendant

Holding

The 3rd defendant is entitled to a refund of the purchase price of Kshs.16,524,000 plus interest from the 2nd defendant, not Kshs.90 million

Reasoning

Cancellation of the 1st defendant's title meant no good title passed to the 2nd or 3rd defendant. The 2nd defendant could not shift indemnity to the Government under section 144(a) RLA because the Government was never joined. The 3rd defendant herself failed in due diligence, so refund of the transaction value with interest was the appropriate measure.

p. 8

Legal principles established

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  • An order shown to have been obtained by fraud is invalid notwithstanding that an application to set it aside was withdrawn; withdrawal cannot be used to defeat parties affected who were never heard
  • The innocent purchaser defence requires proof of valid title, due diligence and valuable consideration; payment of money alone does not qualify a purchaser as innocent purchaser for value
  • Section 143 of the Registered Land Act offers no protection to a party not in possession who did not search or exercise due diligence
  • A counter-claim may proceed even where the plaintiff's claim is not determined; a party who keeps silent on the counter-claim cannot belatedly challenge it

Court orders

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  1. 1.The claim by the plaintiff in the original suit (Swalehe Mohamed Mwakiruwa) is dismissed for not being proved
  2. 2.Judgment entered in favour of the plaintiff in the counter-claim in terms of prayers (a) and (c)-(d) therein (vacant possession and rectification of the register cancelling entries from 11 August 2004 and closing the subdivided titles)
  3. 3.The 2nd defendant to pay the 3rd defendant Kshs.16,524,000 as refund of monies paid during the sale transaction, within 60 days, with interest at court rates from the date of judgment until payment in full
  4. 4.Costs of the counter-claim awarded to the plaintiff in the counter-claim, to be paid by Swalehe Mohamed Mwakiruwa

Authorities

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Legislation

  • Limitation of Actions Act
  • Registered Land Act (repealed)Sections 27, 28, 39(1), 143, 144(a)
  • Civil Procedure RulesOrder 7 Rule 13; Order 7 Rule 3; Order 1 Rule 24; Order 16
  • Penal CodeSections 317, 347(a), 313

Cases cited (11)

  • Woburn Estate Ltd vs Margaret Bashforth
    (2016) eKLR
  • Refrigeration Utensils Ltd vs Gulachand Popatlal Shah & Ano
    Civil Application No. 39 of 1990
  • William Koros vs Kiptoo Komen & 4 others
    (2015) eKLR
  • Samuel Kamere vs L.R. Kajiado
    Nairobi Civil Appeal No. 28 of 2005
  • Kinyanjui Kamau vs George Kamau Njoroge
    (2015) eKLR
  • Joseph Kamamu Musa & others vs Ireri & Co. Ltd & 3 others
    (2018) eKLR
  • KCB Ltd vs Kenya Planters Co-operative Union
    (2010) eKLR
  • Lawrence Muchiri vs Attorney General & 4 others
  • Kibiro Wagoro Makumi vs Francis Nduati Macharia & Ano
    (2018) eKLR
  • Arthi Highway Developers Ltd vs West End Butchery Ltd
    (2015)
  • Denis Noel Mukhulo & Ano vs Elizabeth Murungari Njoroge & Ano
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction over land disputes (Environment and Land Court Act); the judgment does not cite a specific enabling provision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Swalehe Mohamed Mwakiruwa v Samuel Njoroge Waruhiu [2020] KEELC 2575 (KLR)", Case Analysis (2020). Civil Case No. 139 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2575/eng@2020-05-12

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