Joyce Mutete Mawioo v Pauline Wanjiru Nganga & 4 others [2020] KEELC 3871 (KLR)
The bottom line
#The Environment and Land Court in Malindi cancelled a Lamu land title because the plot was still under an undischarged 1989 charge when it was fraudulently transferred in 2010.
What this practically means
#Executive summary
#Key legal issues
#Whether the registration of the 1st Defendant as proprietor of the suit property was lawful
The court held that the title issued to the 1st Defendant on 7th September 2010 was procured through fraud perpetrated jointly and severally by the Defendants, because the property was still encumbered by the deceased's 1989 charge and no evidence was offered of any lawful revocation and re-allocation.
The court found that the deceased was allocated the plot by letter of offer in 1988, accepted the offer and executed a charge over it in favour of the Settlement Fund Trustees in 1989. The registry records showed a transfer to the 1st Defendant in September 2010 although the property had not been discharged. The defence produced no evidence at trial, and its assertion of good-faith registration was found baseless and aimed at perpetuating an illegality.
Whether the Defendants' claim of good-faith registration was sustainable
The court rejected the defence as unsupported, no witness having been called by the 2nd to 5th Defendants.
Although the State defendants filed a statement of defence asserting that the registration was done in good faith and within the law, they neither testified nor produced any evidence. There was likewise no evidence explaining how the 2nd Defendant took back the suit property and re-allocated it to the 1st Defendant, rendering the defence hollow.
Legal principles established
#- A title issued over a property that remains encumbered by an undischarged charge, without any evidence of how the allocation was revoked and re-allocated, is obtained through fraud.
Court orders
#- 1.Judgment entered for the Plaintiff as prayed in the Plaint, namely: a declaration that the 1st Defendant's title to Plot No. LMM/HMSS/572 is illegal, irregular, fraudulent, null and void; an order that the 3rd and 4th Defendants annul, cancel and/or revoke the 1st Defendant's title from the register and issue the Plaintiff with a title to the suit property; and a permanent injunction restraining the 1st Defendant from dealing with the suit property adversely to the Plaintiff's rights
- 2.Costs of the suit awarded to the Plaintiff
- Jurisdiction invoked
- Not expressly stated; original civil jurisdiction of the Environment and Land Court over a dispute relating to title to land situate in Lamu County
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njagi v Kariuki & 3 others (Environment and Land Appeal E029 of 2022) [2024] KEELC 4790 (KLR)[2024] KEELC 4790 (KLR)19 Jun 2024
Cite this brief
#Cite this brief
Caselaw, "Joyce Mutete Mawioo v Pauline Wanjiru Nganga & 4 others [2020] KEELC 3871 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3871/eng@2020-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.