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ELCPartially AllowedEnvironment and Land Case (as per Re-amended Plaint dated 7th May, 2012, further amended 23rd May, 2014)· [2020] KEELC 2980 (KLR)

John Gitau Mungai v Stephen Thuku Kabebe & 3 others [2020] KEELC 2980 (KLR)

Environment and Land Court
24 April 2020
7,517 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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The court cancelled a fraudulent land transfer and returned the land to its owner, but he must refund the buyer over KES 2.3 million.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Lamu/Hindi Magogoni/198 offered to him by the Settlement Fund Trustees in 1999, sued after discovering that the land had been transferred to the 1st Defendant on 27th March, 2012 using a Land Control Board consent of 25th August, 2010 and a certified copy of a Discharge of Charge, alleging fraud. He sought cancellation of the consent, the registration of the Discharge of Charge and of the 1st Defendant as proprietor. The 1st Defendant counter-claimed, asserting he had genuinely purchased the land for Kshs. 1,822,500 through the Plaintiff's wife under a Power of Attorney, and sought a refund if the transaction was found invalid. The court found that the Plaintiff, a literate man, validly signed the Sale Agreement of 18th June, 2010 witnessed by two persons, and was bound by its terms acknowledging receipt of Kshs. 1,770,000. However, the Transfer was attested by a purported advocate, M.M. Kahindi, who did not exist on the Law Society roll, making the Transfer null and void under Sections 34 and 35 of the Advocates Act and Section 110 of the Registered Land Act. Registration effected on a certified copy of the Discharge of Charge, while the original remained with the Plaintiff, was fraudulent, and the Land Control Board consent was a nullity since the land remained encumbered. The Plaintiff partially proved his case and the 1st Defendant partially proved his counter-claim: the Plaintiff regained the land but was ordered to refund Kshs. 2,323,855 with interest at court rates, with each party bearing its own costs.

Key legal issues

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01

Validity of the Sale Agreement of 18th June, 2010

Holding

The Agreement was valid and binding on the Plaintiff, who admitted his signature; his assertion that he signed a blank page was rejected

Reasoning

The Plaintiff, a literate retired Kenya Power employee, admitted his signature on the computer-generated fourth page containing certificates, which could not have been blank when signed. His witnesses confirmed signing at Mahrus Hotel. Following Securicor Courier (K) Ltd v Benson David Onyango, a signatory is bound absent fraud or misrepresentation. The Plaintiff could not acknowledge his signature yet disown the Agreement's contents.

p. 6
02

Validity of the Transfer attested by purported advocate M.M. Kahindi

Holding

The Transfer was null and void because the attesting person was not an advocate, contrary to Sections 34 and 35 of the Advocates Act and Section 110 of the Registered Land Act

Reasoning

Documentary evidence from the Law Society Advocate Search Engine showed no advocate named M.M. Kahindi, and Mrs Kinuthia denied attesting the Transfer. The evidentiary burden thus shifted to the 1st Defendant, who adduced no documentary proof that such an advocate existed. An instrument attested by a non-advocate is void and could not transfer the Plaintiff's interest.

p. 7
03

Registration using a certified copy of the Discharge of Charge

Holding

The registration was fraudulent because only the original Discharge of Charge is registrable and the original was in the Plaintiff's custody

Reasoning

The 1st Defendant admitted using a certified copy of the Discharge of Charge to discharge the land and effect registration. Since the original remained with the Plaintiff, the copy used was not a registrable instrument. The court held the 1st Defendant should have sought specific performance instead of engaging in illegality, rendering the registration fraudulent.

04

Validity of the Land Control Board consent of 25th August, 2010

Holding

The consent was a nullity because the land was still charged to the Settlement Fund Trustees when it was issued

Reasoning

The Land Control Board must satisfy itself that land intended for sale is available for sale; encumbered land is not available. Since the land remained charged to SFT at the date of consent, whether the Plaintiff attended the Board meeting was immaterial. The consent was therefore a nullity.

p. 8
05

Refund of monies paid by the 1st Defendant

Holding

The Plaintiff was ordered to refund Kshs. 2,323,855 being Kshs. 2,220,000 acknowledged under the Agreement and paid, plus Kshs. 103,855 paid to SFT

Reasoning

Although the transfer was a nullity, the 1st Defendant partially proved his counter-claim for refund. The Agreement acknowledged Kshs. 1,770,000 paid, which included the cash payments of Kshs. 560,000 and Kshs. 400,000 and the Kshs. 410,000 bank deposit; a further Kshs. 450,000 was admitted. The Kshs. 103,855 paid to SFT was a debt of the Plaintiff and refundable.

p. 8

Legal principles established

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  • A party who signs a document containing contractual terms is bound by it in the absence of fraud or misrepresentation, whether or not he read it
  • A transfer instrument attested by a person who is not an advocate is null and void and cannot effect transfer of land
  • Only the original Discharge of Charge is a registrable instrument; registration effected on a certified copy is fraudulent
  • Land Control Board consent cannot issue over encumbered land, as encumbered land is not available for sale

Court orders

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  1. 1.A permanent injunction restraining the 1st Defendant from selling, disposing of, charging, mortgaging, sub-dividing or in any manner interfering with the Plaintiff's ownership, quiet possession and enjoyment of Lamu/Hindi Magogoni/198
  2. 2.An order of inhibition inhibiting registration of any dealing in favour of the 1st Defendant or any person claiming through him
  3. 3.A declaration that the purported registration of the Discharge of Charge of the Settlement Fund Trustees on 23rd March, 2012 and the registration of the 1st Defendant as proprietor were fraudulent, illegal, unlawful and wrongful
  4. 4.Cancellation, removal and/or revocation of entry number 2 on the encumbrances section and numbers 6 and 7 of the proprietorship section of the register (green card)
  5. 5.Re-registration and/or reinstatement of the Plaintiff as absolute proprietor and issuance of a fresh Title Deed to him
  6. 6.The Plaintiff to refund to the 1st Defendant Kshs. 2,323,855
  7. 7.Interest on Kshs. 2,323,855 at court rates from the date of filing suit until payment in full
  8. 8.Each party to bear his own costs

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Registered Land Act (repealed)Section 110(1)(3); Fourth Schedule (Rule 7)
  • Advocates ActSections 34 and 35

Cases cited (2)

  • Securicor Courier (K) Limited vs. Benson David Onyango & Another
    (2008) eKLR
  • National Bank of Kenya Limited vs. Anaj Warehousing Limited
    (2015) eKLR, Petition No. 36 of 2014
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership and registration of land

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, "John Gitau Mungai v Stephen Thuku Kabebe & 3 others [2020] KEELC 2980 (KLR)", Case Analysis (2020). Environment and Land Case (as per Re-amended Plaint dated 7th May, 2012, further amended 23rd May, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2980/eng@2020-04-24

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