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ELCAllowedNakuru ELC No. 288 of 2013 (formerly Nakuru HCCC No. 460 of 1999, originally Nakuru CMCC No. 545 of 1990)· [2020] KEELC 2780 (KLR)

Jane Muthoni Ngare & another v Flomena Njoki Kamau [2020] KEELC 2780 (KLR)

Environment and Land Court
7 May 2020
2,597 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff purchased a share in Maai Mahiu Kijabe Longonot Company Ltd from original member Waweru Kanai in 1979 for Kshs 16,000, had the share transferred at the company's offices, was issued a share certificate and allocated plot No.3046 by balloting. He took possession of the 5-acre plot in 1983, built a home, cultivated and kept livestock. In 1990 he discovered a title for the plot had been issued in the defendant's name. He sued for declarations of ownership, cancellation of the defendant's title and rectification of the register. After the plaintiff's death, his two widows, holding letters of administration intestate, were substituted and continued the suit. The defendant filed a defence but, though served, did not attend the hearing and gave no evidence. The court framed four issues: the deceased's membership and allocation, his possession, the validity of the defendant's registration, and the reliefs to grant. Relying on uncontroverted evidence corroborated by the company secretary (who confirmed the defendant was not a member and that her share certificate No.2784 fell outside the membership register of 2,576), the court found the plaintiff lawfully acquired and occupied the plot, that the defendant's registration was fraudulently procured, and that under sections 26(1) and 80 of the Land Registration Act, 2012 the register should be rectified. Judgment was entered for the plaintiffs with declarations of ownership and fraud, cancellation of the defendant's title, rectification of the register in favour of the administrators, and costs of the suit awarded to the plaintiffs.

Key legal issues

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01

Whether the deceased plaintiff lawfully acquired the suit property through purchase of a share in Maai Mahiu Kijabe Longonot Company Ltd

Holding

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.

Reasoning

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.

p. 3
02

Whether the defendant's registration as owner was fraudulently procured

Holding

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.

Reasoning

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.

p. 3
03

Whether the register should be rectified under section 80 of the Land Registration Act, 2012

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.A declaration that the deceased plaintiff is the legal owner of L.R Kijabe/Kijabe Block 1/3046
  2. 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. 3.An order that the title deed for L.R No. Kijabe/Kijabe Block 1/3046 in the defendant's name be cancelled
  4. 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. 5.Costs of the suit awarded to the plaintiffs

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80(1) and (2)

Cases cited (4)

  • Shaneebal Ltd -Vs- County Government of Machakos
    (2018) eKLR
  • CMC Aviation Ltd –Vs- Cruisair Ltd (No.1)
    (1978) KLR 103; (1976-80) IKLR 835
  • Motex Knitwear Ltd –Vs- Gopitex Knitwear Mills Limited
    Nairobi Milimani HCCC No.834 of 2002
  • Antar Singh Bahra & Another -Vs- Raju Gorindji
    HCCC No. 548 of 1998
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (suit transferred to ELC following its inauguration)

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, "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.