Elvine Leware Macager v Land Registrar, Migori & 3 others [2021] KEELC 630 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's suit, ruling that holding a title deed is not enough — buyers of encumbered land and the Registrar both acted lawfully.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the Registrar's nullification of the plaintiff's title
The nullification was lawful; the Registrar complied with section 79(4)(a) of the Land Registration Act by issuing notices to the plaintiff, the deceased and the 3rd defendant before rectification
The court found that the rectification was carried out under section 79 of the Land Registration Act, which confers discretion to rectify on grounds of fraud. Notices dated 11th September 2014 and 26th August 2014 were issued, and DW1 confirmed during cross-examination that summons for nullification were issued accordingly. The plaintiff's complaint of breach of Article 47 and the Fair Administrative Action Act therefore failed, as fair process was demonstrated.
Validity of the plaintiff's acquisition of the suit property from the deceased
The sale was illegal because the property was encumbered by a subsisting charge in favour of the 3rd defendant at the time of the sale to the plaintiff
The plaintiff admitted the property was encumbered at the material time and could not show how the deceased discharged it. A sale of charged property without discharge was illegal, and the court, applying the ex turpi causa principle, declined to enforce obligations arising from it. The transfer and title in favour of the plaintiff thus pointed to an illegality.
Whether the plaintiff is entitled to the reliefs sought
The plaintiff failed to prove his claim on a balance of probabilities and was not entitled to any of the reliefs sought
Applying sections 107 to 110 of the Evidence Act, the burden lay on the plaintiff. Relying on Munyu Maina, the plaintiff, whose root of title was under challenge, had to go beyond the title instrument and prove legality of acquisition, which he failed to do. The injunction claim also failed the Giella vs Cassman Brown threshold. The suit was consequently dismissed with costs to the respondents.
Legal principles established
#- A registered proprietor whose root of title is under challenge must prove the legality of the acquisition beyond merely producing the title instrument
- Courts will not enforce an illegal contract; no action arises from an illegal transaction
- A registrar may exercise discretion to rectify the register on the ground of fraud, subject to issuing notices to affected parties under section 79(4)(a) of the Land Registration Act
- The threshold for permanent injunction requires proof of irreparable injury, inadequacy of pecuniary compensation and prevention of multiplicity of suits
Court orders
#- 1.The suit by way of plaint dated 27th November 2014 and amended on 1st March 2018 is dismissed
- 2.Costs to the respondents
- Jurisdiction invoked
- Environment and Land Court Act, section 13 (7)(a); Article 162(2)(b) of the Constitution (original jurisdiction over land disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elvine Leware Macager v Land Registrar, Migori & 3 others [2021] KEELC 630 (KLR)", Case Analysis (2021). Migori Environment and Land Court ELC (Fast Track) Suit — plaint dated 27th November 2014, amended 1st March 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/630/eng@2021-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.