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Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment beyond the plaint dated 31st October 2017· [2020] KEELC 3158 (KLR)

Funzi View Co. Ltd v Sammy Nyambati Nyaboisi & 2 others [2020] KEELC 3158 (KLR)

Environment and Land Court of Kenya
3 February 2020
1,455 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Funzi View Company Limited sued over parcel KWALE/FUNZI ISLAND/256, claiming to be its registered absolute and indefeasible owner following its purchase on 14th February 2014 from Seif Ali Mohamed for Kshs.1,800,000/=, with the transfer registered on 30th April 2014. It alleged that the 1st and 2nd defendants, with the assistance of the District Land Registrar, Kwale (the 3rd defendant), procured a title issued on 11th February 2009 over the same parcel, and that in 2016 the plaintiff discovered, through an official search, that the parcel was registered in the 1st and 2nd defendants' names, the plaintiff's Green Card and Certificate of Title having been cancelled without due process. The plaintiff sought declarations of ownership and invalidity, an order for revocation of the defendants' titles and publication in the Kenya Gazette, a permanent injunction, and alternatively compensation of Kshs.1,916,000/=, plus costs. The 1st and 2nd defendants did not enter appearance and interlocutory judgment was entered against them on 5th November 2018. The 3rd defendant filed a defence but did not attend the hearing or lead evidence. PW1, Paul Van Beveren, produced the sale agreement, Land Control Board consent, transfer, stamp duty receipts, title deed and official searches. The court found the plaintiff's evidence uncontroverted, held that one parcel cannot have the same title at the same time, and found the registration of the 1st and 2nd defendants fraudulent. Judgment was entered for the plaintiff in terms of prayers (a), (b), (c), (d) and (f) of the plaint, with costs.

Key legal issues

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01

Whether the plaintiff proved its title and the fraud alleged against the defendants to the required standard

Holding

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

Reasoning

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.

p. 2
02

Whether the title issued to the 1st and 2nd defendants was valid

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.A declaration that the plaintiff is the registered absolute and indefeasible owner of KWALE/FUNZI ISLAND/256
  3. 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. 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. 5.A permanent injunction restraining the defendants, their agents and servants from interfering with or dealing with KWALE/FUNZI ISLAND/256
  6. 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

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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, "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.