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ELCPartially AllowedNot stated in judgment (Plaint dated 21st May, 2018, as amended 29th June, 2018, filed 4th July, 2018)· [2021] KEELC 341 (KLR)

Alice Wambui Maina Muthaka v Margaret Wangui Wachira & another [2021] KEELC 341 (KLR)

Environment and Land Court
16 December 2021
JOJ. O. Olola
1,366 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a land title obtained through forged documents, but refused to award damages because the owner brought no evidence of financial loss.

What this practically means

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Executive summary

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The Plaintiff, claiming to be the only bona fide and legal wife of the late Wilson Mainah Muthaka, the registered proprietor of Nyeri/Waraza/118, sued the Defendant and the Nyeri Land Registrar (as Interested Party) seeking cancellation of the Defendant's title, reversion of the property to the deceased's name, damages, mesne profits, costs and interest. She alleged that in February 2017, while preparing a succession cause, she discovered the Defendant had presented forged documents to the Land Registry, resulting in a transfer and title deed issued on 30th September 2016 - barely a month after the deceased's death - on the strength of a purported sale agreement dated 15th April 2016. Neither the Defendant nor the Interested Party entered appearance or filed a defence, and the suit proceeded by formal proof. The Plaintiff and a DCI investigating officer testified; the advocate purported to have prepared the sale agreement denied doing so in a recorded statement, stating the attesting signatures were forgeries. The Defendant and a co-accused were charged in Nyeri CMCR No. 352 of 2018 with conspiracy to defraud, forgery and obtaining registration of land by false pretences but absconded and remain at large, necessitating substituted service in this suit. The court found the Plaintiff had proved fraud on a balance of probabilities, revoked and cancelled the Defendant's title, and directed the Registrar of Land, Nyeri to revert the registration to Wilson Mainah Muthaka. Damages and mesne profits were declined for want of evidence, and the Defendant was ordered to bear the costs of the suit. Judgment was delivered at Nyeri on 16th December 2021 by J. O. Olola, J.

Key legal issues

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01

Fraudulent acquisition of title

Holding

The Defendant's title to Nyeri/Waraza/118 was procured by fraud, having been transferred barely a month after the registered proprietor's death using a forged sale agreement

Reasoning

The Plaintiff testified that the property belonged to her late husband, registered proprietor until his death on 12th August 2016. A title deed was issued to the Defendant on 30th September 2016 pursuant to a purported sale agreement of 15th April 2016. The advocate said to have prepared the agreement denied doing so and stated the signatures attesting to the transaction were forgeries. The Defendant, served by substituted service, offered no evidence to controvert the Plaintiff's case, which was proved on a balance of probabilities.

p. 2
02

Damages and mesne profits

Holding

Damages and mesne profits were refused for want of supporting evidence

Reasoning

Although the Plaintiff pleaded damages and mesne profits, no evidence was led to establish loss or occupation entitling her to those heads of relief. The court declined to award them, granting only the cancellation and reversion of title and costs.

p. 2

Legal principles established

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  • A title obtained by fraud is liable to be revoked and cancelled, and a plaintiff alleging fraud must prove it on a balance of probabilities

Court orders

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  1. 1.The title to the suit property, Nyeri/Waraza/118, in the name and possession of the Defendant is revoked and cancelled
  2. 2.The Registrar of Land, Nyeri is directed to cancel the registration and have the title revert back to the name of Wilson Mainah Muthaka
  3. 3.The Defendant will bear the costs of this suit
Jurisdiction invoked
Original civil suit (plaint) for cancellation of title; no specific constitutional or statutory provision cited 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, "Alice Wambui Maina Muthaka v Margaret Wangui Wachira & another [2021] KEELC 341 (KLR)", Case Analysis (2021). Not stated in judgment (Plaint dated 21st May, 2018, as amended 29th June, 2018, filed 4th July, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/341/eng@2021-12-16

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