Funzi View Co. Ltd v Sammy Nyambati Nyaboisi & 2 others [2020] KEELC 3158 (KLR)
The bottom line
#A Mombasa court cancelled a duplicate land title over Funzi Island, confirming that two people cannot legally own title to the same parcel of land.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved its title and the fraud alleged against the defendants to the required standard
The plaintiff proved its case on a balance of probabilities; the registration of the 1st and 2nd defendants was fraudulent as the defendants led no evidence to controvert the plaintiff's evidence
The plaintiff tendered the sale agreement, Land Control Board consent, transfer, stamp duty receipts, title deed and official searches. The defendants called no evidence; interlocutory judgment had been entered against the 1st and 2nd defendants and the 3rd defendant did not attend the hearing. The plaintiff's evidence therefore remained uncontroverted, and no explanation existed for the double registration or the cancellation of the plaintiff's name from the Green Card, which the court found fraudulent.
Whether the title issued to the 1st and 2nd defendants was valid
The registration of the 1st and 2nd defendants as proprietors was not done above board, was fraudulent and could not stand alongside the plaintiff's title to the same parcel
Since one parcel cannot bear two titles simultaneously and the cancellation of the plaintiff's Green Card entry was unexplained, the court found the process of registering the 1st and 2nd defendants was irregular and fraudulent, rendering the suit property not lawfully registered in their names, entitling the plaintiff to cancellation of those titles and permanent injunctive relief.
Legal principles established
#- One parcel of land cannot have the same title registered to different proprietors at the same time; a registration of a second title over the same parcel is fraudulent and unlawful
Court orders
#- 1.Judgment for the plaintiff against the defendants jointly and severally in terms of prayers (a), (b), (c), (d) and (f) of the plaint
- 2.A declaration that the plaintiff is the registered absolute and indefeasible owner of KWALE/FUNZI ISLAND/256
- 3.A declaration that the title issued to the 1st and 2nd defendants over KWALE/FUNZI ISLAND/256 was issued irregularly, fraudulently, unlawfully and illegally and is invalid, null and void
- 4.An order to the Registrar of Lands Kwale to revoke, cancel and nullify the Certificates of Title and Green Card issued in favour of the 1st and 2nd defendants and publish the revocation in the Kenya Gazette
- 5.A permanent injunction restraining the defendants, their agents and servants from interfering with or dealing with KWALE/FUNZI ISLAND/256
- 6.Costs of the suit and interest thereon
- Jurisdiction invoked
- Original civil jurisdiction of the High Court/Environment and Land Court over land disputes; no specific provision cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Funzi View Co. Ltd v Sammy Nyambati Nyaboisi & 2 others [2020] KEELC 3158 (KLR)", Case Analysis (2020). Not stated in judgment beyond the plaint dated 31st October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3158/eng@2020-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.