Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC No. 177 of 2017· [2021] KEELC 494 (KLR)

Ratilal Ghela Shah v Darius Mwiti Kirimi Land Registrar, Kwale [2021] KEELC 494 (KLR)

Environment and Land Court
25 November 2021
10,955 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

#

A Kenyan court cancelled a fraudulently obtained land title and confirmed that fraud voids even a registered title certificate.

What this practically means

#

Executive summary

#
The Plaintiff sued the 1st Defendant and the Land Registrar, Kwale over parcel Kwale/Diani Complex/25, seeking a permanent injunction, restoration/reconstruction of the register, cancellation of the title issued to the 1st Defendant on 25th January 2017, rectification of the register, eviction, demolition of structures, security enforcement, and general damages/mesne profits for trespass. The Plaintiff proved he was transferred the suit property by Maltra Limited on 8th August 2006, a registration confirmed by the former Land Registrar (DW-1). The 1st Defendant, a self-confessed former caretaker of Maltra Limited claiming the land was gifted to him, obtained a title via a new green card opened on the strength of a court order in ELC No. 237 of 2016 whose proceedings and order could not be produced or traced. The current Land Registrar (DW-2) admitted creating the green card without ever seeing the original or certified court order. The court held the Plaintiff was the lawful registered proprietor with indefeasible title; the 1st Defendant's title was fraudulently acquired and void. Fraud was proved against the 1st Defendant but not against the 2nd Defendant, though the Registrar acted recklessly and negligently; the Plaintiff failed to identify the officer responsible. The 2nd Defendant's Notice of Claim for indemnity failed for non-compliance with the third-party procedure under Order 1 Rules 15, 22 and 24. The court issued a permanent injunction, declared the Plaintiff the lawful proprietor, ordered cancellation of the 1st Defendant's title and restoration of the register within 30 days, ordered eviction and demolition at the 1st Defendant's expense, awarded Kshs. 500,000 general damages for trespass, but refused mesne profits for lack of a valuation report. The 1st Defendant was to pay the Plaintiff's costs; the 2nd Defendant bore its own costs.

Key legal issues

#
01

Whether the Plaintiff is the lawful registered proprietor of Kwale/Diani Complex/25

Holding

Yes. The Plaintiff obtained good, registrable title from Maltra Limited on 8th August 2006, confirmed by the then Land Registrar (DW-1); the 1st Defendant failed to substantiate how he acquired title

Reasoning

The Plaintiff produced his title deed, transfer, green card entries 4 and 5, Land Control Board consent and clearance certificate. DW-1, the Registrar who effected the 2006 transfer, corroborated the chain from the Government of Kenya to Maltra Limited and then to the Plaintiff. The 1st Defendant's account was contradictory: he variously claimed the land was gifted to him, that the owner effected registration, that his advocate obtained the title, and he produced neither a transfer nor the court order in ELC No. 237 of 2016 on which his title rested.

p. 8
02

Whether fraud was pleaded and proved against the 1st and 2nd Defendants

Holding

Fraud was proved against the 1st Defendant, whose title is void; fraud was NOT proved against the 2nd Defendant, though DW-2 acted recklessly and negligently in registering the 1st Defendant on an unverified court order

Reasoning

The 1st Defendant could not explain how he acquired title, produced no transfer, no proceedings or order in ELC No. 237 of 2016, and his evidence was riddled with contradictions. DW-2 admitted creating a new green card without seeing the original or certified court order. However, the Plaintiff failed to pinpoint the particular officer of the 2nd Defendant who participated in, knew of or benefited from the fraud, and mere negligence falls short of fraud which must be imputed on a particular person.

p. 9
03

The 2nd Defendant's Notice of Claim for indemnity against the 1st Defendant under Order 1 Rule 24

Holding

The Notice of Claim failed because the 2nd Defendant did not follow the third-party procedure prescribed by Order 1 Rule 22 and did not prove liability as between itself and the 1st Defendant

Reasoning

Order 1 Rule 24(2) adopts the third-party procedure under Order 1 Rule 15. As Jeffrey L. Brown v Castle Forest Lodge holds, once the person is included, the Defendant must apply by summons for directions on liability. The 2nd Defendant made no such application or obtained directions, and so failed to prove the liability between itself and the 1st Defendant, notwithstanding that the Notice went undefended.

p. 9
04

Whether the Plaintiff was entitled to general damages/mesne profits for trespass

Holding

Trespass is actionable per se and the Plaintiff, as title holder, was entitled to damages, but only a nominal Kshs. 500,000 was awarded since no valuation or evidence of loss was produced

Reasoning

The 1st Defendant admitted building a semi-permanent house and living rent-free on the land since 1996, so he is a trespasser. Trespass being actionable without proof of damage, the Plaintiff was entitled to damages, but he produced no valuation report of the property before and after trespass nor evidence of expected rental income, so mesne profits failed and only a nominal award for general damages was made, following Nakuru Industries and Philip Aluchio.

p. 10

Legal principles established

#
  • Allegations of fraud must be strictly proved; the standard is above a mere balance of probabilities though below proof beyond reasonable doubt
  • A certificate of title procured by fraud is void; fraud vitiates title
  • Registration vests absolute ownership in the proprietor under Section 24 of the Land Registration Act, subject to the Act
  • A Land Registrar who registers a proprietor on the basis of an unverified court order acts recklessly and negligently and must bear responsibility for the sanctity of the register

Court orders

#
  1. 1.A permanent injunction restraining the 1st Defendant, by himself, representatives, agents, employees or servants, from selling, alienating, letting, subdividing, transferring, charging or in any manner interfering with the Plaintiff's ownership, use, possession and occupation of Kwale/Diani Complex/25
  2. 2.Declaration that the Plaintiff is the absolute and legal registered bona fide proprietor of Kwale/Diani Complex/25
  3. 3.The title held by and registered in the name of the 1st Defendant is declared invalid; under Section 80(1) & (2) of the Land Registration Act, 2012 the Land Registrar, Kwale is directed to cause its cancellation and also the land entries within 30 days
  4. 4.The Land Registrar, Kwale is directed to restore the Kwale/Diani Complex/25 parcel file to its former status indicating the Plaintiff as the legal and absolute registered proprietor within 30 days
  5. 5.The 1st Defendant to vacate and remove all structures on the suit property within 30 days, failing which the Plaintiff may legally evict him under Section 151E of the Land Act, 2012 and demolish the structures at the 1st Defendant's expense
  6. 6.The Plaintiff is awarded Kshs. 500,000.00 general damages for trespass against the 1st Defendant
  7. 7.The 1st Defendant to pay the costs of the suit to the Plaintiff; the 2nd Defendant to bear its own costs

Authorities

#

Legislation

  • Constitution of KenyaArticle 61
  • Land Act, No. 6 of 2012Section 7; Section 151E
  • Land Registration Act, No. 3 of 2012Section 24; Sections 25(1) and 26(1); Section 80(1) & (2)
  • Registered Land Act Cap 300 (Repealed)
  • Penal CodeSection 91
  • Evidence ActSection 109
  • Civil Procedure Rules 2010Order 1 Rule 24; Order 1 Rule 15(1); Order 1 Rule 22

Cases cited (10)

  • Nakuru Industries Limited – Vs - SS Mehta & Sons
    (2016) eKLR
  • Benina Wathuma Kamau – Vs - Nahashon Gichangi Macharia & 5 others
    (2021) eKLR
  • Katende – Vs - Haridas and Company Limited
    (2008) EA 173
  • R. G Patel – Vs - Lalji Makanji
    (1957) EA 314
  • Gitwany Investment Limited – Vs - Taj Mall Limited and 3 others
    (2006) eKLR
  • Jeffrey L. Brown (suing on his own behalf and as administrator of the Estate of Sharon Mary Brown & MCB) – Vs - Castle Forest Lodge Limited & 2 others
    [2018] eKLR
  • Philip Aluchio – Vs - Crispinus Ngayo
    (2014) eKLR
  • Masek Ole Timukoi & 3 others –Versus- Kenya Grain Growers Ltd & 2 others
    ELC (Nku) No. 272 of 2015 (OS)
  • M'Mbaoni M'Thaara – Versus- James Mbaka
    ELC (Chuka) No. 110 of 2017
  • Dr. Joseph M. K. Arap Ngok –Versus- Justice Moijo Ole Keiwua
    Civil Appeal 60 of 1992
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land disputes); suit brought by plaint

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ratilal Ghela Shah v Darius Mwiti Kirimi Land Registrar, Kwale [2021] KEELC 494 (KLR)", Case Analysis (2021). ELC No. 177 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/494/eng@2021-11-25

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