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ELCDismissedNot stated in judgment· [2020] KEELC 3425 (KLR)

Julius Macharia Njenga v Methi & Swani Farmers Cooperative Society Ltd & 2 others [2020] KEELC 3425 (KLR)

Environment and Land Court
27 February 2020
JKJ. G. Kemei
2,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a landowner's bid to cancel a rival's title because he never pleaded or proved fraud, and his caution on the land was removed.

What this practically means

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Executive summary

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The Plaintiff, claiming to be a member of the 1st Defendant company who balloted for plot No 2173 corresponding to plot MITUMBIRI/WEMPA/BLOCK2/2818, sued for cancellation of the title issued to the 2nd Defendant and its registration in his favour. The 1st Defendant denied the claim, stating its records showed the land belonged to the 2nd Defendant and that it was in liquidation with the title-issuance exercise closed. The 2nd Defendant asserted he purchased the plot in 2009 from Julius Mwaura Njenga, received all original documents, was endorsed by the society, took possession, and obtained a title in 2012; he counterclaimed for removal of the Plaintiff's caution. The 3rd Defendant did not enter appearance. The court framed two issues: whether the 2nd Defendant's title should be rectified, and costs. It held the Plaintiff failed to plead particulars of illegality as required by Order 2 Rule 4(1) of the Civil Procedure Code, and failed to discharge the burden of proof under section 107 of the Evidence Act: he produced no agreement of sale, transfer form, membership register or share certificate for his alleged purchase from Mirara Macharia, and offered no evidence for his allegation that Julius Mwaura Njenga was non-existent. Applying sections 26 and 80 of the Land Registration Act and the first-in-time principle, the court found the 2nd Defendant's earlier registration took precedence. The suit was dismissed and the counterclaim allowed; the caution was ordered removed and costs awarded to the 2nd Defendant.

Key legal issues

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01

Whether the 2nd Defendant's title over plot MITUMBIRI/WEMPA/BLOCK2/2818 should be cancelled/rectified

Holding

No - the Plaintiff did not plead particulars of illegality or fraud and did not prove any ground under sections 26 and 80 of the Land Registration Act; the earlier-registered ballot and title of the 2nd Defendant take priority

Reasoning

The Plaintiff pleaded no particulars of illegality as required by Order 2 Rule 4(1) of the Civil Procedure Code. He produced no agreement of sale or transfer form for his alleged acquisition from Mirara Macharia and no membership register or share certificate. His allegation that Julius Mwaura Njenga did not exist was unsupported, the DCI not being called. The transfer form was in fact executed by the 2nd Defendant and society officials. Applying the first-in-time principle, the 2nd Defendant's earlier membership, share certificate and ballot prevail.

p. 3
02

Whether the Plaintiff's caution should be removed (2nd Defendant's counterclaim)

Holding

Yes - the caution was unjustified, claimed a licensee's interest at variance with an ownership claim, and no evidence supported it; the court ordered removal under section 73 of the Land Registration Act

Reasoning

The court found that the caution lodged on 16/8/12 claiming licensee's interest was inconsistent with the ownership interest asserted in the suit, and the Plaintiff led no evidence of any licensee's interest or justification for its continuance. Exercising the power under section 73 of the Land Registration Act, the court ordered the caution removed.

p. 4

Legal principles established

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  • Illegality and fraud are matters that must be specifically pleaded with particulars.
  • A title may only be impeached on the grounds set out in section 26 of the Land Registration Act, namely fraud or misrepresentation, or illegal, unprocedural or corrupt acquisition.
  • Where there are competing titles, the one registered earlier takes priority.
  • A party alleging a fact bears the burden of proving it; allegations unsupported by evidence are insufficient.

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The 2nd Defendant's counterclaim succeeds
  3. 3.The caution lodged on the 16/8/12 is ordered to be removed
  4. 4.The costs of the suit and the counterclaim shall be borne by the Plaintiff in favour of the 2nd Defendant
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (land dispute; statute invoked includes the Land Registration 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, "Julius Macharia Njenga v Methi & Swani Farmers Cooperative Society Ltd & 2 others [2020] KEELC 3425 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3425/eng@2020-02-27

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