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ELCDismissedKajiado ELC Appeal No. 112 of 2018· [2021] KEELC 313 (KLR)

Rosaline Njeri Ndungu v Keziah Wairimu Zacharia & another [2021] KEELC 313 (KLR)

Environment and Land Court
8 December 2021
1,070 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court revoked a landowner's title after finding she and her advocate swapped title deeds to take land another buyer had already been shown and occupied.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kajiado against the judgment of Hon. Kasera in Kajiado Magistrate's Court Case No. 300 of 2013 delivered on 26 November 2018, in which the second Respondent was awarded LR NGONG/NGONG/57597 and the Appellant LR NGONG/NGONG/57598. The Appellant, who had purchased land from the first Respondent and obtained a title deed to NGONG/NGONG/57597, raised seven grounds of appeal centred on privity of contract, the absence of an agreement between the first and second Respondents over that parcel, and her claim to be the undisputed owner. The Respondents supported the trial judgment, maintaining that each buyer had been shown their parcel on the ground and that the confusion arose when the Appellant and G.M. Nyambati & Co. Advocates swapped the titles. The court identified the crux as which parcel each party was shown on the ground. It found the second Respondent's agreement of 10 June 2010 with John Saitoti Shuguru valid, found the Appellant was shown the parcel that became NGONG/NGONG/57598, found she was not the undisputed owner given the multi-forum dispute, and found the Appellant and her advocate colluded to deprive the second Respondent of his parcel. The appeal was dismissed, both titles were revoked with directions for transfer to the respective parties, and costs were awarded to the Respondents, including the costs of the lower court.

Key legal issues

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01

Validity of the second Respondent's purchase agreement

Holding

The agreement of 10/6/2010 between the second Respondent and John Saitoti Shuguru was valid, and the second Respondent had been shown the land on the ground before it

Reasoning

The court found that by the date of the agreement the second Respondent had already been shown the land on the ground, and that the trial Magistrate correctly so found. This confirmed that the second Respondent's entitlement related to the parcel he occupied, later numbered NGONG/NGONG/57597.

p. 2
02

Which parcel the Appellant bought

Holding

The land sold to the Appellant was the parcel shown to her on the ground, which later became NGONG/NGONG/57598, not the parcel occupied by the second Respondent

Reasoning

The court held that the Appellant was physically shown her parcel before numbering, and that the titles were later swapped by the Appellant and G.M. Nyambati & Co. Advocates. The trial Magistrate therefore made no error in attributing NGONG/NGONG/57598 to the Appellant.

p. 2
03

Whether the Appellant held an undisputed title

Holding

The Appellant was not the undisputed owner because the dispute over her title ran from the advocate's office, to the Police Station, to the Tribunal and eventually to the Magistrate's Court

Reasoning

The court reasoned that a contested title, disputed through multiple forums, cannot be described as undisputed. Further, the Appellant and her advocate colluded to deprive the second Respondent of the parcel he already occupied, so she could not rely on her title deed as owner of NGONG/NGONG/57597.

p. 2

Legal principles established

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  • A title obtained through collusion to deprive another of land cannot be defended as a good title
  • Identification of land sold is sufficiently established by physical identification of the parcel on the ground

Court orders

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  1. 1.Title Numbers NGONG/NGONG/57597 and NGONG/NGONG/57598 revoked
  2. 2.The first Respondent to transfer NGONG/NGONG/57597 to the second Respondent
  3. 3.The first Respondent to transfer NGONG/NGONG/57598 to the Appellant
  4. 4.Appeal dismissed with costs to the Respondents, who also get the costs of the Lower Court as against the Appellant

Authorities

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Legislation

  • Land Registration ActSection 26
On appeal from
Kajiado Magistrate's Court
Case No. 300 of 2013
Jurisdiction invoked
First appellate jurisdiction over the Magistrate's Court (original civil appeal; no specific provision quoted in the judgment)

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, "Rosaline Njeri Ndungu v Keziah Wairimu Zacharia & another [2021] KEELC 313 (KLR)", Case Analysis (2021). Kajiado ELC Appeal No. 112 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/313/eng@2021-12-08

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