Ratilal Ghela Shah v Darius Mwiti Kirimi Land Registrar, Kwale [2021] KEELC 494 (KLR)
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
#Key legal issues
#Whether the Plaintiff is the lawful registered proprietor of Kwale/Diani Complex/25
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
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.
Whether fraud was pleaded and proved against the 1st and 2nd Defendants
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
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.
The 2nd Defendant's Notice of Claim for indemnity against the 1st Defendant under Order 1 Rule 24
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
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.
Whether the Plaintiff was entitled to general damages/mesne profits for trespass
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
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.
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.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.Declaration that the Plaintiff is the absolute and legal registered bona fide proprietor of Kwale/Diani Complex/25
- 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.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.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.The Plaintiff is awarded Kshs. 500,000.00 general damages for trespass against the 1st Defendant
- 7.The 1st Defendant to pay the costs of the suit to the Plaintiff; the 2nd Defendant to bear its own costs
- 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.