Patrick Gitonga M’Ikiara v Ruthson Mangati M’Ikiara & 5 pthers [2020] KEELC 2981 (KLR)
The bottom line
#A Nairobi court cancelled a land buyer's title because a caveat on the property meant they could not claim they bought it in good faith.
What this practically means
#Executive summary
#Key legal issues
#Indefeasibility of title under the Registration of Titles Act and its limits
The title of a first registered proprietor is indefeasible, but the indefeasibility of a subsequent proprietor's title may be questioned where the title was acquired through fraud, misrepresentation or an illegally procured document
The court analysed sections 23(1) and 55 and 56 of the Registration of Titles Act, which provide that the title of a first registered proprietor is indefeasible, and that a certificate of title is a permanent record which can only be revoked, cancelled or corrected by the court in limited circumstances. The court held that where a title has been procured through fraud or misrepresentation, indefeasibility does not attach. In this case, the 2nd Defendant's title was procured in breach of an agreement and in breach of an existing statutory charge, making it liable to be nullified.
Whether the Interested Party qualified as a bonafide purchaser for value without notice
The Interested Party did not qualify as a bonafide purchaser for value without notice because the transfer was subject to the Plaintiff's caveat, which constituted constructive notice
The court held that a purchaser is affected by actual, constructive or imputed notice. Since the transfer from the 2nd Defendant to the Interested Party was executed while the Plaintiff's caveat was registered against the title, the Interested Party was affected with constructive notice of the Plaintiff's overriding interest. In the absence of evidence of an inquiry into the caveat, the court presumed notice. The doctrine of bonafide purchaser for value without notice therefore did not avail the Interested Party.
Whether a purchaser of property subject to a caveat acquires good title
A transferor cannot pass a better title than it has; a transfer of property subject to a caveat does not extinguish the rights of the party who registered the caveat
The court reasoned that the transfer of the suit property by the 2nd Defendant to the Interested Party could not confer a better title on the Interested Party than the 2nd Defendant himself held. The 2nd Defendant's title was itself subject to the Plaintiff's overriding interest and caveat. Consequently, the transfer could not defeat the Plaintiff's rights, and the Interested Party's acquisition was subject to the same encumbrance.
Legal principles established
#- Where a certificate of title has been procured through fraud or misrepresentation, the title is liable to be revoked, cancelled or nullified
- A bonafide purchaser for value without notice acquires an indefeasible title, but notice may be actual, constructive or imputed
- A transferor cannot pass a better title than it has; where a property is transferred subject to a caveat, the transferee is affected with notice of the third party's interest
- In the absence of evidence of an inquiry by the purchaser, it is presumed that the purchaser had notice of the entry of a caveat
Court orders
#- 1.A declaration that the suit premises title known as L.R. No. 209/12575/1 held by the 1st and 2nd Defendants and later transferred to and held by the Interested Party was subject to the Plaintiff's overriding interest
- 2.A declaration that the Plaintiff is entitled to the unencumbered title over L.R. No. 209/12575/1 to the exclusion of all the Defendants and the Interested Party
- 3.A permanent injunction restraining the Defendants and the Interested Party from alienating, disposing of, transferring, charging, or in any way dealing with L.R. No. 209/12575/1
- 4.A permanent injunction restraining the Defendants and the Interested Party from interfering with the Plaintiff's quiet possession, use, control and enjoyment of the suit property
- 5.A mandatory order compelling the Interested Party and the 2nd Defendant to sign and execute all requisite documents and to co-operate in all measures for the reconveyance, re-transfer and re-registration of the suit property to the Plaintiff
- 6.An order that in default of the Defendants and/or Interested Party signing and executing the requisite documents for the re-registration of the suit property to the Plaintiff, the Deputy Registrar of this Court does sign all the said documents on behalf of the Defendants and/or the Interested Party
- 7.Vacatur and cancellation of the title held by the Interested Party over L.R. No. 209/12575/1 and issuance of a title in the name of the Plaintiff
- 8.General damages against the 2nd Defendant for the period 16th September 2005 until the suit property is surrendered back to the Plaintiff, such damages to be assessed by the Deputy Registrar
- 9.Costs of the suit and of the Interested Party's Notice of Motion dated 26th March 2014 to the Plaintiff, to be taxed in default of agreement
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya 2010, the Environment and Land Court Act (No. 19 of 2011) and the Registration of Titles Act (Cap 281)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Gitonga M’Ikiara v Ruthson Mangati M’Ikiara & 5 pthers [2020] KEELC 2981 (KLR)", Case Analysis (2016). Land Reference No. 8145 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2981/eng@2020-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.