Abubakar Salim Machiri v Francis Juma Mutoro & 2 others [2021] KEELC 442 (KLR)
The bottom line
#A Kenyan court confirmed that land titles can only be cancelled by courts, not by Gazette Notices, and ordered trespassers evicted and a body exhumed.
What this practically means
#Executive summary
#Key legal issues
#Validity of Wabululu MulongO's title acquired through the 1st defendant as Administrator
Wabululu MulongO obtained a valid title having purchased 9 acres recognised in the family distribution; the 1st defendant's claim that only 2 acres were sold was dishonest.
Three witnesses including the 1st defendant's own brother and an independent secretary to the clan meeting corroborated that Wabululu bought 9 acres. The 1st defendant's own claim in the 1999 tribunal proceedings admitted the family agreed to give him nine acres on payment of balances. His later contrary claim was a poor attempt to renege on the agreement.
Fraudulent cancellation of the plaintiff's title via Gazette Notice No 6454
No court order existed in Kimilili Civil Case No 17 of 1999 authorising cancellation; the Gazette Notice and the second Green Card with subsequent sub-divisions were null and void ab initio, and fraud against the 1st defendant was established to the civil standard.
The Senior Resident Magistrate Kimilili confirmed Civil Case No 17 of 1999 concerned a dowry claim, not the suit land, and that no vesting order issued. The 1st defendant procured the cancellation and, with officers at the Bungoma Lands Registry, opened a second Green Card and created new titles. The Registrar had no statutory power to cancel titles through a Gazette Notice.
Whether the 2nd and 3rd defendants were innocent purchasers for value
They were not innocent purchasers; with due diligence they would have discovered the plaintiff's prior interests, the 3rd defendant knew of the Gazette Notice, the plea was never pleaded, and they took sides in the dispute.
The court held diligence would have revealed prior interests; the 3rd defendant's own statement showed knowledge of the Gazette Notice before purchase; no Land Control Board consent was produced; the land was occupied when they moved in; and the innocent purchaser plea was raised only in submissions, which are not evidence.
Res judicata based on Bungoma HCCC No 55 of 2006
The plea failed because the plaintiff was not a party to that case, was not litigating through any party to it (having bought the land after it was filed), and Omollo J had already dismissed a similar application.
The court noted the 2006 case predated the plaintiff's purchase and involved different parties; no appeal was preferred against Omollo J's ruling dismissing the earlier res judicata application; the plea was therefore wholly unmeritorious.
Protection of the plaintiff's title under Article 40 and the Land Registration Act
The plaintiff's title is protected by Article 40(1) and Sections 24 and 26 of the Land Registration Act and can only be impeached on the grounds in Section 26(1); no such grounds were shown against him.
Since Wabululu voluntarily transferred the land to the plaintiff with no further claim, the plaintiff's title could only be impeached for fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme. Instead, the evidence established that the cancellation of Wabululu's title and all subsequent sub-divisions were fraudulent and void ab initio.
Legal principles established
#- A Land Registrar has no power to cancel a title deed; that power vests in the courts and cannot be exercised through a Gazette Notice.
- Property unlawfully acquired is not protected by Article 40(1) of the Constitution by virtue of Article 40(6).
- A thief acquires no transferable right or interest in stolen property; the transaction is void ab initio and the property traceable.
- Res judicata being an issue of law may be raised and determined by the court on its own motion where there is sufficient evidence.
- Submissions are not evidence and issues not pleaded cannot be raised through submissions.
- A bona fide purchaser must hold a certificate of title, purchase in good faith, for valuable consideration, without notice of fraud and not be party to fraud.
Court orders
#- 1.Declaration that the entries in the second register cancelling title No Bungoma/Kamakoiwa/2165 are null and void
- 2.Cancellation of entries numbers 7, 8 and 9 for parcel Bungoma/Kamakoiwa/2165 and all other subsequent titles in respect of parcels 4436, 4437, 4079, 4080, 4081, 4082 and 3223
- 3.Declaratory order that the plaintiff is the sole owner of parcel Bungoma/Kamakoiwa/2165
- 4.Defendants, their agents, relatives, servants and all persons claiming through or under them ordered to vacate parcel 2165 within six months, failing which eviction
- 5.2nd defendant ordered to exhume the remains of Josephine Sichangi alias Josephine Nakhumicha Chesa from parcel 2165 within six months, with Public Health Officer Bungoma assistance and OCS Bungoma security in default
- 6.Defendants jointly and severally to meet costs of the suit with interest
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land title and trespass disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abubakar Salim Machiri v Francis Juma Mutoro & 2 others [2021] KEELC 442 (KLR)", Case Analysis (2021). Bungoma ELC (amended plaint dated 7th October 2019) - not specified in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/442/eng@2021-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.