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ELCPartially AllowedELC Case No. 462 of 2012· [2020] KEELC 2745 (KLR)

James Mukuria Njoroge (Suing as the Administrator of the estate of the late Njoroge Thiaru v Joseph Muraya Gachuhi & 2 others [2020] KEELC 2745 (KLR)

Environment and Land Court
5 May 2020
KBK. Bor
5,094 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land title sold after the director who signed the transfer had died, confirming that hidden records can sink a defence.

What this practically means

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Executive summary

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The Plaintiff, administrator of the estate of Njoroge Thiaru, claimed that his late father was allotted plot 173 (L.R. No. 13330/592) as a shareholder of Thome Farmers No. 5 Limited, that he paid sums to Joreth Limited's advocates, Kimani Kahiro Advocates, to regularise the title following a consent in HCCC No. 6206 of 1992, and that Joreth Limited fraudulently transferred the Suit Property to the 1st Defendant. He alleged the transfer dated 12/4/2012 could not have been signed by director Njenga Karume, who died on 24/2/2012, and sought cancellation of the 1st Defendant's title. The 1st Defendant claimed to be a bona fide purchaser for Kshs. 10,000,000/= in 2011 with indefeasible title; the 2nd Defendant denied the father's allocation and asserted ownership. The court framed one issue: which party had the superior claim. It found the Plaintiff paid more than Kshs. 200,000/= to Kimani Kahiro Advocates, that the 2nd Defendant failed to produce the payment records it held (drawing on Section 112 of the Evidence Act), that the Plaintiff was in occupation when the land was sold, and that the 2nd Defendant's Site Manager was not credible. The court held the defence failed to prove Njenga Karume executed the transfer, noting his death before the transfer's stated date and the absence of the witnessing advocate and Margaret Magugu as witnesses. The 1st Defendant's claim to indefeasibility was undermined by the undervalued consideration, missing stamp duty records, and charging the land for Kshs. 30,000,000/= during the suit. The suit was allowed on prayers (a) and (b), with costs against the 2nd Defendant.

Key legal issues

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01

Whether the Plaintiff had a superior claim to the Suit Property, having paid the consideration demanded under the consent order to the 2nd Defendant's agents.

Holding

Yes. The court believed the Plaintiff's evidence that he paid more than Kshs. 200,000/= to Kimani Kahiro Advocates for the Suit Property, and the 2nd Defendant failed to produce the records of payment it held.

Reasoning

The 2nd Defendant allowed occupants claiming under Thome Farmers No. 5 Limited to regularise ownership by paying Kshs. 200,000/= per plot to Kimani Kahiro Advocates. The Plaintiff produced receipts totaling Kshs. 225,000/=. The 2nd Defendant's witness confirmed payments were channelled through that firm but the firm's records of payment were never produced, and the 2nd Defendant opposed production of Kimani Kahiro's affidavit. Failure to produce those records discharged the Plaintiff's evidential burden.

p. 4
02

Whether the Plaintiff was in occupation of the Suit Property when it was sold to the 1st Defendant.

Holding

Yes. The court believed the Plaintiff's evidence that he was in possession and had leased the land as a garage.

Reasoning

The Plaintiff testified that he leased the land to third parties operating a garage, reported harassment and demolition of a worker's house to Kasarani Police Station. The 1st Defendant did not deny the police report. The 2nd Defendant's Site Manager, who would have known of the occupation, was found not credible; the court found he would have known of the garage on the land in 2011.

p. 5
03

Whether the 1st Defendant was an innocent purchaser for value protected by the indefeasibility of title.

Holding

No. His claim failed on credibility and on the circumstances of the transaction.

Reasoning

The transfer registered in May 2012 stated consideration of Kshs. 1,800,000/= despite his claim of paying Kshs. 10,000,000/=; no stamp duty receipt or legible registration application was produced; he charged the land for Kshs. 30,000,000/= while the suit was pending; and the defence did not call the witnessing advocate or Margaret Magugu to prove when the deceased director Njenga Karume executed the transfer. The transfer bearing a date after Karume's death could not have been signed by him.

p. 5
04

Whether the Plaintiff's claim was proved to the requisite standard.

Holding

Yes, on a balance of probabilities.

Reasoning

The court found the 2nd Defendant's witness not credible, found inconsistencies in the defendants' evidence on the execution and registration of the transfer, and found that the Plaintiff proved his payment, occupation and allocation claim. The court therefore granted the principal prayers in the plaint.

p. 5

Legal principles established

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  • Where a party withholds or fails to produce records in its possession, the burden of disproving the other party's claim under Section 112 of the Evidence Act lies on it.
  • The burden of proving that a transfer was validly executed by a deceased director lay on the defendants, and failure to call the advocate who witnessed the execution left that burden undischarged.

Court orders

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  1. 1.Grant of prayers (a) and (b) of the plaint dated 31/7/2012 - cancellation of the 1st Defendant's title and restraint from dealing with the Suit Property
  2. 2.Costs of the suit awarded to the Plaintiff, to be borne by the 2nd Defendant

Authorities

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Legislation

  • Land Registration ActSection 80(2)
  • Registration of Titles ActSection 23
  • Evidence ActSection 112
  • Registration of Titles Act (repealed)Section 65(1)(f)

Cases cited (1)

  • Mwangi Kiarie v Joreth Limited and 2 others
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (Environment and Land Court Act)

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, "James Mukuria Njoroge (Suing as the Administrator of the estate of the late Njoroge Thiaru v Joseph Muraya Gachuhi & 2 others [2020] KEELC 2745 (KLR)", Case Analysis (2020). ELC Case No. 462 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2745/eng@2020-05-05

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