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ELCPartially AllowedCase number not stated in the judgment (Plaint dated 15th May, 2017)· [2020] KEELC 3051 (KLR)

Wibeso Investments Limited & another v Tamarind Meadows Limited & 5 others [2020] KEELC 3051 (KLR)

Environment and Land Court of Kenya
24 April 2020
14,687 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~59 min to read original · ~4 min brief

The bottom line

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When two titles claim the same Kenyan land, the one registered first wins, and a buyer from someone with no valid title gets nothing.

What this practically means

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Executive summary

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This was a first-instance Environment and Land Court suit at Machakos, decided by Angote J on 24th April 2020, concerning two competing Grants - I.R. 72481 held by the Plaintiffs and the purported I.R. 71611 held by the 1st Defendant - both claiming L.R. No. 18469 at Athi River, Machakos County. The Plaintiffs sought declarations, permanent injunctions, eviction and damages for trespass; the 1st Defendant defended as a bona fide purchaser for value from Volta Insurance Consultants Limited and sought indemnity from the state Defendants. The court framed seven issues: res judicata, laches, validity of the competing Grants, bona fide purchaser status, indemnity, trespass and entitlement to relief. It found the suit was not res judicata, the High Court in Petition No. 405 of 2016 having lacked jurisdiction over title, and that laches and estoppel were neither pleaded nor proved. On the evidence of the register, presentation day books, correspondence files, forged signatures of land officials, and the dormant vendor company, the court held Grant I.R. 72481 (registered 13th March 1997) was the genuine, first-in-time title, while I.R. 71611 was never registered, was a forgery, and was a nullity. The 1st Defendant failed to prove bona fide purchase or payment of the purchase price, so no protection under Section 23 of the repealed Registration of Titles Act applied and its indemnity claim failed. Trespass was established. The court allowed the Plaint in part, granting declarations, injunctions, eviction within 60 days, general damages of Kshs 3,000,000 and costs against the 1st Defendant, but declined an inquiry into mesne profits and general/exemplary damages beyond that award.

Key legal issues

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01

Whether the suit was res judicata given the prior High Court Petition No. 405 of 2016

Holding

The suit is not res judicata; the High Court lacked jurisdiction over title disputes and never determined ownership of L.R. 18469, and the central parties were not before that court

Reasoning

The court held that the prayers in Petition No. 405 of 2016 were principally directed at stopping prosecutions, and the question of ownership and title of L.R. 18469 could not have been resolved by the High Court by virtue of lack of jurisdiction, the Environment and Land Court being the constitutionally mandated forum. Further, the Plaintiffs, the 1st Defendant and the 2nd Defendant were not parties to the petition, so the ownership issue was never determined between them.

p. 6
02

Whether the defences of laches and equitable estoppel barred the Plaintiffs' claim

Holding

Neither defence was pleaded as required by Order 2 Rule 4 of the Civil Procedure Rules and both would fail on the evidence in any event

Reasoning

The defences were raised for the first time in submissions contrary to the rules of pleadings. Even on the merits, the claim fell within the 12-year limitation period under section 7 of the Limitation of Actions Act, reckoned from discovery of the fraud in December 2009. On estoppel, no evidence was led that the Plaintiffs allowed or encouraged the 1st Defendant to develop the land; instead, they reported the encroachment to the police.

p. 7
03

Which of Grant I.R. 72481 and Grant I.R. 71611 is the valid title for L.R. No. 18469

Holding

Grant I.R. 72481, registered on 13th March 1997 in favour of the 1st Plaintiff, is the genuine Grant; Grant I.R. 71611 was never registered, is non-existent for L.R. 18469, and is a nullity

Reasoning

The register, presentation day books and correspondence files showed that I.R. 72481 was duly registered with correspondence file No. 141301, while day book entry 279 of 18th June 2002 recorded a Trust Deed and not a new Grant. I.R. 71611 was in fact a sub-division of L.R. 209/11521 created in 1996. The alleged signatories' signatures were forgeries, confirmed by the deceased registrar Birundu's statement, which was uncontroverted.

p. 10
04

Whether the 1st Defendant is a bona fide purchaser for value without notice

Holding

The 1st Defendant is not a bona fide purchaser for value; it bought from a vendor with no title, payment of the purchase price was not proved, and it knew its title was questionable

Reasoning

The vendor, Volta Insurance Consultants Limited, was dormant, owned no land and had never applied for or been allotted the suit property. No sale agreement was produced and the bank statements did not show direct payments to the vendor, with withdrawals continuing six months after the transfer and none between incorporation and execution of the transfer. The Registrar had informed the 1st Defendant as early as 2011 that its title was not valid.

p. 12
05

Whether the Plaintiffs were restricted to compensation under Section 24 of the repealed Registration of Titles Act

Holding

Section 24 does not apply; the section is not the exclusive remedy and its factual preconditions (erroneous registration or bringing land under the Act) were not established

Reasoning

Section 24 uses permissive language ('may bring and prosecute an action at law for the recovery of damages'), so the law does not prohibit a legal owner from seeking recovery of the land itself. In any event, there was no evidence of erroneous registration or that the 1st Defendant or Volta was ever registered as proprietor of L.R. 18469, so the section was inapplicable.

p. 13
06

Whether the 1st Defendant is entitled to indemnity under Section 81 of the Land Registration Act

Holding

The claim for indemnity fails; there was no double registration or registrar negligence, and the 1st Defendant knew its Grant was fake

Reasoning

Double registration presupposes that the registrar issued two titles over the same parcel, which was not proved; the evidence showed the land was never allocated or registered to Volta Insurance Consultants Limited. Under Section 81(2), no indemnity is payable to a person who caused or contributed to the damage by fraud. The court held the 1st Defendant should pursue the vendor, not the Registrar, for redress.

07

Whether the 1st Defendant is a trespasser and what damages are payable

Holding

The 1st Defendant and those claiming through it are trespassers; the 2nd Plaintiff is awarded general damages for trespass of Kshs 3,000,000

Reasoning

Trespass is entry onto another's land without permission or lawful justification, and honest belief or mistake is no defence. The 1st Defendant entered on the basis of a non-existent and unregistered document. Although trespass is actionable per se and nominal damages would lie, the court considered the 17-acre size, the wrongful denial of use since 2008 and the divergent designated users in fixing damages at Kshs 3,000,000.

p. 13

Legal principles established

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  • Where two certificates of title purport to exist for the same land under the Torrens system, the first in time to be registered prevails
  • An unregistered instrument under Part V of the Registration of Titles Act is ineffectual to pass any land or interest therein
  • A purchaser can only obtain protection as a bona fide purchaser for value where he deals with a registered proprietor; a void title passes nothing
  • The Torrens system cannot be used to protect a person who fraudulently acquires land from the true owner
  • A claimant who caused or substantially contributed to the damage by fraud or negligence is not entitled to indemnity from the government for land registration errors
  • Trespass is actionable per se, whether or not actual harm or damage is proved

Court orders

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  1. 1.A declaration that Grant Number IR 72481 allocated L.R. 18469, issued to the 1st Plaintiff and registered on 13th March, 1997, is the valid and genuine title for L.R. No. 18469 situate in Athi River, Machakos County
  2. 2.A declaration that the purported Grant number IR 71611 said to have been allocated L.R. No. 18469 for residential purposes on 18th June 2002 and transferred to the 1st Defendant on 29th August, 2008 is fraudulent, invalid, non-existent, null and void
  3. 3.A declaration that Grant Number I.R. 72481, being first in time to be registered in the government lands register, is the only valid and genuine title of land L.R. 18469
  4. 4.A permanent injunction restraining the 1st Defendant, its directors, shareholders, members, associates, agents, employees and any person claiming through them from trespassing on or dealing with or interfering with the Plaintiffs' parcel of land registered as Grant number I.R. 72481, L.R. No. 18469
  5. 5.A permanent injunction restraining the 2nd Defendant, his subordinates, officers or persons acting through them from interfering with or dispossessing the Plaintiff of the parcel of land, including through making adverse entries or registrations on the lands register without the Plaintiff's consent
  6. 6.An order compelling the 1st Defendant and all persons claiming through it to vacate the parcel of land registered as Grant number IR 72481, L.R. No. 18469, within 60 days of the Judgment, failing which they will be forcefully evicted
  7. 7.An order that the Officer Commanding Police Division, Athi River and the Divisional Criminal Investigations Officer, Athi River ensure the orders of the Court are obeyed and provide assistance in the evictions should the 1st Defendant and persons acting through it fail to vacate within 60 days
  8. 8.General damages for trespass of Kshs 3,000,000 to be paid to the 2nd Plaintiff by the 1st Defendant
  9. 9.Costs of the suit awarded to the Plaintiffs as against the 1st Defendant
  10. 10.The 1st Defendant's Notice of Claim against the Co-Defendants (2nd and 6th Defendants) is dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 165(5)
  • Constitution of Kenya, 2010Article 40
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 2 Rule 4(1) and (2)
  • Civil Procedure RulesOrder 21 Rule 13
  • Limitation of Actions ActSection 7
  • Environment and Land Court ActSection 13
  • Land Registration Act, 2012Section 107
  • Land Registration Act, 2012Section 81(1) and (2)
  • Land ActSection 162(1)
  • Registration of Titles Act (repealed)Section 2
  • Registration of Titles Act (repealed)Sections 23, 24, 25, 26, 27, 28, 29, 30, 31, 32
  • Government Lands Act (repealed)Not specified

Cases cited (17)

  • Uhuru Highway Development Limited v Central Bank of Kenya & 2 others
    [1996] eKLR
  • Republic v Karisa Chengo & 2 others
    [2017] eKLR
  • Kennedy Otieno Agwaro, Joseph Mungai and David Kitawi Ngoda v Director of Criminal Investigations, Director of Public Prosecution and others (Nairobi Milimani Constitutional & Human Rights Division Petition No. 405 of 2016)
  • Chase International Investment Corporation and Another v Laxman Keshra and 3 others
    (1978) eKLR
  • Gitwany Investment Limited v Tajmal Limited & 3 others
    [2006] eKLR
  • Wreck Motors Enterprises v Commissioner of Lands
    C.A. No. 71/1997 (unreported)
  • Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others
    [2015] eKLR
  • Popatlal v Visandjee
    [1960] EA 361; [1959] EA 372
  • Souza Figuiredo v Moorings Hotel
    [1960] EA 926
  • Cross v Great Insurance Company Limited of India
    [1966] EA 94
  • Redcliff Holdings Limited v Registrar of Titles & 2 others
    (2017) eKLR
  • Mureithi & 2 Others v Attorney General & Others
    Nairobi HCMA No. 158 of 2005 (2006) 1 KLR
  • Gibbs v Messer
    [1891] AC 247
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    [2019] eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR
  • Macfoy v United Africa Co. Ltd
    (1961) 3 All ER 1169
  • Sukhdev Singh Laly v Philip Ojwang Kamau & 3 others
    [2018] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the 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, "Wibeso Investments Limited & another v Tamarind Meadows Limited & 5 others [2020] KEELC 3051 (KLR)", Case Analysis (2020). Case number not stated in the judgment (Plaint dated 15th May, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3051/eng@2020-04-24

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