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ELCPartially AllowedOriginating Summons dated 16th June, 2020· [2021] KEELC 176 (KLR)

Lucy Wangari Wamburi (Suing as the administrator of the estate of Wamburi Bobi, deceased) v Kenya Railways Corporation & 7 others [2021] KEELC 176 (KLR)

Environment and Land Court
20 December 2021
2,222 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Nairobi court cancelled a land title obtained illegally, confirming that a title certificate alone does not prove genuine ownership in Kenya.

What this practically means

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Executive summary

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The applicant, administrator of the estate of Wamburi Bobi (deceased), brought an Originating Summons seeking a declaration that she is the lawful owner of L.R No. Nairobi Block 93/1440 (formerly L.R No. 209/9534(Part)/46) Plainsview South B, Nairobi; revocation of the title held by the 4th to 7th respondents; and an order directing registration of the property in her name. The deceased purchased the suit property from the 1st respondent in 2001/2002 for Kshs. 800,000/-, paid the full price and took possession, developing it with temporary structures. He died in 2017 before registration, although the 1st respondent had executed a transfer of lease in his favour in 2007, lodged only in September 2017. Registration was rejected because a title had already issued to the 4th to 7th respondents, registered as tenants in common on 30th December 2010. The Originating Summons was unopposed. Applying Munyu Maina v Hiram Gathiha Maina, the court held that a registered proprietor whose root of title is challenged must prove legality of acquisition; the burden shifted to the 4th to 7th respondents, whose silence meant their 2010 registration was illegal. Judgment was entered for the applicant against the 1st, 3rd and 4th to 7th respondents: a declaration of beneficial ownership in the estate, cancellation of the respondents' registration and Certificate of Lease, and a conditional order that the applicant be registered upon presentation of a valid transfer of lease, consents and payment of charges. No wrongdoing was found against the 1st to 3rd respondents; the 2nd respondent was wrongly joined and the suit was dismissed against it with no order as to costs. Costs were awarded to the applicant against the 4th to 7th respondents jointly and severally.

Key legal issues

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01

Whether the deceased lawfully purchased the suit property from the 1st respondent

Holding

The court found the sale lawful: the deceased paid the full purchase price of Kshs. 800,000/- in 2001/2002 and was given possession, evidenced by a letter of offer, agreement for sale, lease, transfer of lease and subsequent correspondence.

Reasoning

The court relied on documentary evidence including a letter of offer dated 13th November 2001, an undated 2002 agreement for sale, a lease dated 10th January 2003, a transfer of lease executed in 2007 and letters by the 1st respondent confirming the deceased's ownership. Possession and development by the deceased and continued possession by his estate corroborated lawful purchase and performance of the contract.

p. 2
02

Whether the 4th to 7th respondents were unlawfully registered as owners in 2010

Holding

Their registration was illegal; the burden shifted to them to explain their acquisition and, being undefended, the burden was not discharged.

Reasoning

The court applied Munyu Maina v Hiram Gathiha Maina: a registered proprietor whose root of title is challenged must prove legality of acquisition. The 4th to 7th respondents did not defend the suit; the applicant's contentions of illegality and non-possession went unrebutted. The applicant having proved the 2001/2002 purchase and 2007 transfer of lease, the only inference was that the 2010 registration was illegal.

p. 2
03

Whether the applicant was entitled to the reliefs sought

Holding

The applicant was entitled to a declaration of beneficial ownership and revocation of the 4th to 7th respondents' title, but not to an unconditional order compelling registration.

Reasoning

Relying on section 143 of the Registered Land Act and section 26 of the Land Registration Act, 2012, the court held fraud or illegal acquisition justified rectification by cancelling the 4th to 7th respondents' registration. However, the 3rd respondent's refusal to register the applicant was not unreasonable while the property remained registered to the 4th to 7th respondents; a conditional registration order was made instead. The 2nd respondent was wrongly joined.

p. 3

Legal principles established

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  • When a registered proprietor's root of title is under challenge, the proprietor must go beyond the instrument of title and prove the legality of the acquisition
  • Registration of title is absolute and indefeasible only where the creation of the title accorded with the law and was not procured by fraud or misrepresentation

Court orders

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  1. 1.Declaration that the applicant, as legal representative of the estate of Wamburi Bobi, deceased, is the beneficial owner of L.R No. Nairobi Block 93/1440 (formerly L.R No. 209/9534(Part)/46) Plainsview South B, Nairobi
  2. 2.Cancellation of the registration of the 4th to 7th respondents as leasehold proprietors of the suit property on 30th December, 2010 and of the Certificate of Lease issued to them on the same date
  3. 3.Conditional order that the applicant be registered as proprietor of the suit property upon presentation of a valid transfer of lease executed by the 1st respondent and the applicant, necessary consents and certificates, and payment of requisite charges
  4. 4.Suit dismissed with no order as to costs as against the 2nd respondent
  5. 5.Applicant awarded costs of the suit against the 4th to 7th respondents jointly and severally

Authorities

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Legislation

  • Registered Land Actsection 143
  • Land Registration Actsection 26

Cases cited (2)

  • Milan Kumar Shah & 2 others v City Council of Nairobi & another
    Nairobi High Court Civil Suit No. 1024 of 2005 (O.S)
  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land registration and title disputes; rectification of register under section 143 of the Registered Land Act (Cap 300, repealed) and section 26 of the Land Registration Act, 2012

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, "Lucy Wangari Wamburi (Suing as the administrator of the estate of Wamburi Bobi, deceased) v Kenya Railways Corporation & 7 others [2021] KEELC 176 (KLR)", Case Analysis (2021). Originating Summons dated 16th June, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/176/eng@2021-12-20

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