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ELCPartially AllowedNot stated in the judgment (Plaint dated 6th July 2017)· [2020] KEELC 3906 (KLR)

Propwa Company Limited v Justus Nyamo Gatondo & another [2020] KEELC 3906 (KLR)

Environment and Land Court
30 January 2020
LGL. GACHERU
2,583 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court cancelled a fraudulently obtained land title in Thika, confirming that Kenyan courts will not protect titles acquired through fraud.

What this practically means

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Executive summary

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The Plaintiff, a limited company, sued over LR No. Kiambaa/Thimbigua/5754, claiming it purchased the property from one Wangui Kanugu for Kshs.23,000,000 under a sale agreement of 25th November 2010 and was issued a title deed on 12th January 2011. It alleged that in March 2015 strangers encroached, and that the 1st Defendant held a title dated 16th November 2011 procured by fraud and forgery; the 1st Defendant had been charged with forgery in Criminal Case No. 344 of 2015. The Plaintiff sought a declaration of ownership, a permanent injunction, cancellation of the 1st Defendant's title, restoration of the green card, general damages, indemnity costs and interest. The 1st Defendant did not enter appearance or defend despite service; the 2nd Defendant (the Land Registrar) filed a defence but did not call evidence, so the matter proceeded by formal proof. The court, per L. Gacheru J, reiterated that uncontroverted evidence does not automatically prove a case and that the plaintiff must still discharge the burden on a balance of probabilities. Finding the Plaintiff's title duly issued under the repealed Registered Land Act, Cap 300, the court held the Plaintiff was the lawful proprietor. Because the 1st Defendant never explained the root of his title, the court inferred fraud, held the transfer null and void ab initio, and, under Section 26(1) of the Land Registration Act and the rectification powers in Section 143(1) Cap 300/Section 80(1) LRA, ordered cancellation of the 1st Defendant's title and restoration of the Plaintiff's green card. Judgment was entered in terms of prayers (a), (b), (c), (d), (f) and (g), with nominal general damages of Kshs.1,500,000 for trespass in place of the general damages sought.

Key legal issues

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01

Whether the Plaintiff is the legal proprietor of the suit property

Holding

The Plaintiff is the legal proprietor, having produced a sale agreement and a title deed issued on 12th January 2011 under the repealed Registered Land Act, Cap 300, whose Section 28 rights could not be defeated except as provided in the Act.

Reasoning

The Plaintiff produced a sale agreement evidencing purchase from Wangui Kanugu for Kshs.23,000,000 and a title deed issued under Cap 300. Under Sections 27 and 28 of the repealed Registered Land Act, the proprietor's rights are not liable to be defeated except as provided in the Act. With no evidence to controvert, the court held registration is prima facie proof of ownership and declared the Plaintiff the legal owner.

p. 2
02

Whether the 1st Defendant's title was procured by fraud and is impeachable

Holding

The transfer to the 1st Defendant was fraudulent and the resulting title null and void ab initio, falling within the impeachable titles contemplated by Section 26(1) of the Land Registration Act.

Reasoning

The 1st Defendant never entered appearance and so never explained the root of his title. There could not be two titles over the same property, and the property could not have been transferred without the Plaintiff relinquishing its title. Applying the definitions of fraud and Section 26(1) of the Land Registration Act, the court found the documentation deceitful and unexplained, lifting the statutory protection of the title.

p. 3
03

Whether the register should be rectified by cancelling the 1st Defendant's title

Holding

The court ordered rectification of the register, cancelling the 1st Defendant's title and restoring the Plaintiff's proprietorship, invoking Section 143(1) of Cap 300 as repeated in Section 80(1) of the Land Registration Act.

Reasoning

Having found the certificate of title was procured by fraud, the court held it impeachable and ought to be cancelled. Since the Plaintiff had proven lawful ownership, fairness required the register to be rectified to cure the fraud and return the property to its rightful owner who demonstrated how the property was purchased.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence of ownership but may be impeached on the ground of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme.
  • Where a certificate of title is called into question, the burden shifts to the title holder to explain the root of the title; failure to do so permits an inference of fraud.
  • Uncontroverted evidence is not automatic proof of a case; a plaintiff must still discharge the burden of proof on a balance of probabilities.
  • The court may order rectification of the register where a registration was obtained by fraud or mistake.

Court orders

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  1. 1.Declaration that the Plaintiff is the lawful proprietor of LR No. Kiambaa/Thimbigua/5754
  2. 2.Permanent injunction restraining the 1st Defendant from entering, remaining upon, alienating, encumbering, charging, interfering, transferring or dealing with the suit property
  3. 3.Order directing the 2nd Defendant to cancel the title deed issued to the 1st Defendant on 16th November 2011
  4. 4.Order directing the 2nd Defendant to restore the Green Card relating to the Plaintiff's proprietorship
  5. 5.General damages of Kshs.1,500,000/= for trespass
  6. 6.Costs of the suit on full indemnity basis
  7. 7.Interest on damages and costs at court rates

Authorities

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Legislation

  • Registered Land Act, Cap 300 (now repealed)Sections 27, 28, 143(1)
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80(1)

Cases cited (5)

  • Shaneebal Limited Vs County Government of Machakos
    (2018) eKLR
  • Karuru Munyororo Vs Joseph Ndumia Murage & Another
    Nyeri HCCC No.95 of 1988
  • Kenya Power & Lighting Company Limited Vs Nathan Karanja Gachoka & another
    [2016] eKLR
  • Gichinga Kibutha Vs Caroline Nduku
    (2018) eKLR
  • Alice Chemutai Too Vs Nickson Kipkurui Korir & 2 Others
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim concerning title to land (LR No. Kiambaa/Thimbigua/5754)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (21)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Propwa Company Limited v Justus Nyamo Gatondo & another [2020] KEELC 3906 (KLR)", Case Analysis (2020). Not stated in the judgment (Plaint dated 6th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3906/eng@2020-01-30

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