Jane Muthoni Ngare & another v Flomena Njoki Kamau [2020] KEELC 2780 (KLR)
The bottom line
#A Kenyan court cancelled a land title obtained through fraud and restored the plot to the family of the man who truly bought it.
What this practically means
#Executive summary
#Key legal issues
#Whether the deceased plaintiff lawfully acquired the suit property through purchase of a share in Maai Mahiu Kijabe Longonot Company Ltd
The court found the deceased plaintiff purchased Waweru Kanai's share, was transferred the share, became a member, was allocated plot No.3046 by balloting, took possession in 1983 and developed it; his evidence was uncontroverted and corroborated by the company secretary.
The plaintiff produced the 1979 sale agreement, share certificate, ballot, transfer fee payment and registration fee receipt for plot No.3046. PW2, the company secretary, confirmed the transfer and that the defendant was not a member. The defendant gave no evidence, so the plaintiff's evidence stood unchallenged and was accepted on a balance of probabilities.
Whether the defendant's registration as owner was fraudulently procured
The court held the defendant's title was fraudulently procured; her alleged share certificate No.2784 fell outside the company's membership register (which went up to number 2576) and was therefore fake.
The defendant did not testify to explain how she obtained title. PW2 testified she was not a member and could not have been allocated land. The chairman's letter showed membership was up to number 2576, so her certificate No.2784 was fake. In the face of unrebutted evidence, the court concluded the registration was fraudulent, bringing it within section 26(1) of the Land Registration Act.
Whether the register should be rectified under section 80 of the Land Registration Act, 2012
The court found this an appropriate case for rectification and ordered the register rectified by cancelling the defendant's title and issuing the title deed to the administrators of the deceased plaintiff's estate.
Section 80(1) permits rectification where registration was obtained by fraud or mistake. The defendant's registration was found fraudulent; she did not rebut the plaintiff's evidence, so the plaintiff's case was proved on a balance of probabilities and rectification followed.
Legal principles established
#- Pleadings are not evidence until proved or disproved by testimony; a defence not supported by evidence remains unproven.
- A certificate of title may be challenged on grounds of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme.
- The court may order rectification of the register where a registration was obtained by fraud or mistake.
Court orders
#- 1.A declaration that the deceased plaintiff is the legal owner of L.R Kijabe/Kijabe Block 1/3046
- 2.A declaration that the Defendant's Title Deed for land parcel Kijabe/Kijabe Block 1/3046 was obtained through misrepresentation, and/or fraudulently
- 3.An order that the title deed for L.R No. Kijabe/Kijabe Block 1/3046 in the defendant's name be cancelled
- 4.An order that the Land Registrar, Nakuru County rectify the register by issuing the title deed for land parcel Kijabe/Kijabe Block 1/3046 in the names of Jane Muthoni Ngare and Josephine Wambui Ngari, the appointed administrators of the deceased plaintiff's estate
- 5.Costs of the suit awarded to the plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (suit transferred to ELC following its inauguration)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Muthoni Ngare & another v Flomena Njoki Kamau [2020] KEELC 2780 (KLR)", Case Analysis (2020). Nakuru ELC No. 288 of 2013 (formerly Nakuru HCCC No. 460 of 1999, originally Nakuru CMCC No. 545 of 1990). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2780/eng@2020-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.