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ELCPartially Allowed· [2020] KEELC 3974 (KLR)

Ngahu Wa Muchiiri v Joseph Kabui Kiragu & another [2020] KEELC 3974 (KLR)

Environment and Land Court of Kenya
25 June 2020
JOJ.M OnyangoEOE.O. Obaga
4,464 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Nairobi court cancelled a land title because the owner could not prove he acquired it lawfully, sending the property back to the original allottee.

What this practically means

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Executive summary

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The Plaintiff sued over Title No. Nairobi Block 117/506, seeking a declaration that the registration in the 1st Defendant's name was null and void ab initio, cancellation and re-issue of the title to himself, a permanent injunction, damages and costs. The Plaintiff testified he bought the plot from the 2nd Defendant in 1982, completed payment and was issued a share certificate, an allotment letter dated 3.1.2011 and a confirmation letter to the Commissioner of Lands. The 1st Defendant claimed to have purchased the same plot from the 2nd Defendant on 10.10.2001 for Kshs. 400,000 and obtained a Certificate of Lease in 2006. The 2nd Defendant did not enter appearance. The court framed three issues: validity of the 1st Defendant's title, proof of fraud, and entitlement to reliefs. Applying Munyu Maina and Daudi Kiptugen, the court held that a registered proprietor challenged on his root of title must prove the legality of the acquisition process. The 1st Defendant produced no letter of allotment from the Commissioner of Lands, no stamp duty receipts, and admitted he conducted no due diligence. His unstamped sale agreement was held inadmissible for failure to invoke section 19(3) of the Stamp Duty Act. Fraud was proved against the 2nd Defendant, who double-sold the property and misled the Commissioner of Lands, but not against the 1st Defendant to the required standard. Following Esther Ndengi, the Land Registration Act, 2012 rather than section 143 of the repealed Registered Land Act applies, so no registration is immune from rectification. The 1st Defendant failed as a bona fide purchaser for value without notice. The court declared the registration null and void ab initio, cancelled the title and ordered re-issue to the Plaintiff, issued a permanent injunction, and awarded costs against both Defendants jointly and severally.

Key legal issues

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01

Whether the 1st Defendant holds a valid title to the suit property

Holding

No - the 1st Defendant failed to prove the legality of the acquisition process and his title was obtained unlawfully and unprocedurally

Reasoning

Applying Munyu Maina and Daudi Kiptugen, the registered proprietor had to go beyond the instrument of title and prove lawful acquisition. The 1st Defendant produced no letter of allotment from the Commissioner of Lands, no receipts proving payment of stamp duty or requisite charges, and admitted he conducted no due diligence by checking the 2nd Defendant's register. The 2nd Defendant's contradictory letters to the Commissioner of Lands showed dishonest dealing. The acquisition process, not merely the end result, is material to validity of title.

02

Whether the Plaintiff proved fraud on the part of the Defendants

Holding

Fraud was proved against the 2nd Defendant but not against the 1st Defendant

Reasoning

The uncontroverted evidence showed the 2nd Defendant knowingly sold the suit property to both parties and misled the Commissioner of Lands into registering the 1st Defendant despite having earlier allotted it to the Plaintiff. However, fraud must be distinctly proved; there was no evidence that the 1st Defendant knowingly misled the Commissioner of Lands, so allegations against him personally were not proved to the required standard.

p. 5
03

Whether the Plaintiff is entitled to the reliefs sought

Holding

Yes - the 1st Defendant's title is liable to cancellation under sections 26(1)(b) and 80 of the Land Registration Act; the bona fide purchaser defence failed

Reasoning

Relying on Esther Ndengi v Gatei Mbugua, the applicable law is the Land Registration Act, 2012 and not section 143 of the repealed Registered Land Act, so the first-registration protection cannot shield a title obtained fraudulently or unprocedurally. The 1st Defendant was not a bona fide purchaser for value without notice because he negligently failed to conduct due diligence, thereby contributing to the faulty registration of a title over land already allocated to the Plaintiff.

Legal principles established

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  • When a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership; the proprietor must prove the legality of how he acquired the title
  • Titles obtained under the repealed Registered Land Act are governed by the Land Registration Act, 2012 after its commencement, and no registration is exempt from rectification under section 80
  • An unstamped sale agreement is inadmissible in evidence unless the court invokes section 19(3) of the Stamp Duty Act
  • Fraud must be distinctly pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt

Court orders

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  1. 1.A declaration that the registration of title No. Nairobi Block 117/506 in the name of the 1st Defendant was unprocedural and therefore null and void ab initio
  2. 2.Cancellation of the title in the name of the 1st Defendant and re-issue of a title in the name of the Plaintiff
  3. 3.A permanent injunction restraining the 1st Defendant from assigning, transferring, charging, alienating or parting with possession of title No. Nairobi Block 117/506
  4. 4.Costs of the suit to be borne by the Defendants jointly and severally

Authorities

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Legislation

  • Stamp Duty ActSection 19 (and 19(3))
  • Land Registration ActSections 26(1)(a), 26(1)(b), 80(1), 80(2), 104, 105, 106(1), 106(3), 107(1)
  • Registered Land Act, Cap 300 (repealed)Section 143(1), 143(2)

Cases cited (9)

  • Munyu Main v Hiram Maina
    (2013) eKLR
  • Daudi Kiptugen v Commissioner of Land Nairobi & 4 others
    (2015) eKLR
  • Katende v Haridar & Co Ltd
    2 EACA 173
  • Shimoni v Registrar of Titles & 5 Others
    (2016) eKLR
  • Mara North Conservancy Ltd v Koinanke Ole Nkoitoi & 3 Others
    (2011) eKLR
  • Westlands Residential Resorts Ltd v Kawakanja Limited and 2 Others
    (2013) eKLR
  • Surgi Pharm Limited v Asher Pharmacy Ltd
    HCCC No. 295 of 2004
  • Gichinga Kibutha v Carolyne Nduku
    (2018) eKLR
  • Esther Ndengi & Another v Gatei Mbugua
    (2020) eKLR
Jurisdiction invoked
Original civil jurisdiction over a dispute relating to title to land (Environment and Land Court)

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, "Ngahu Wa Muchiiri v Joseph Kabui Kiragu & another [2020] KEELC 3974 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3974/eng@2020-06-25

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