Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Case of 2017 (Paint/Plaint dated 9th November 2017)· [2021] KEELC 872 (KLR)

Alice Waruguru Mbui & another v Elijah Mithamo Mbui [2021] KEELC 872 (KLR)

Environment and Land Court
12 November 2021
ECE. C. Cherono
2,021 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kerugoya court cancelled a 1972 land registration obtained by fraud, voided all later transfers, and ordered the land register restored to the original owner.

What this practically means

#

Executive summary

#
The plaintiffs, daughters of the late Mbui Mbogo (original registered proprietor of land parcel No. KABARE/NYANGATI/440), sued their brother, the defendant, seeking declarations that his registration as proprietor of the suit land in 1972 and all subsequent dealings were fraudulent, null and void. They contended that the defendant, then a minor, in collusion with their late mother, fraudulently had the land registered in his name under the name Mbogo Mbui, and later changed his name to Mithamo Elijah Mbui to conceal the fraud, before subdividing and transferring portions to third parties. The defendant maintained that he acquired the land through transmission pursuant to a succession cause, and that the name change was lawful. He argued the claim was time-barred under the Limitation of Actions Act and that the plaintiffs lacked locus standi having no letters of administration. The court, per Hon. E. C. Cherono, ELC Judge, noted that the green card showed registration in favour of Mbui Mbogo in 1958 and the change to Mbogo Mbui on 26/6/1972, and that the defendant failed to produce proceedings or a grant in the purported succession cause. Corroborated by the Wang'uru Arbitration Cause No. 25/2004 in which the tribunal agreed with the plaintiffs, the court found fraud proved under Section 26 of the Land Registration Act, held all subsequent dealings void, directed the Land Registrar, Kirinyaga County to rectify the register by reverting the land to Mbui Mbogo, and awarded costs against the defendant.

Key legal issues

#
01

Whether the defendant's registration as proprietor in 1972 was fraudulent

Holding

Yes - the defendant fraudulently caused the land to be transferred from the original owner MBUI MBOGO to himself as MBOGO MBUI and thereafter changed his name to conceal the fraud

Reasoning

The green card showed the land was first registered in favour of MBUI MBOGO on 6/6/1958, then changed to MBOGO MBUI on 26/6/1972. The defendant claimed transmission through a succession cause but produced no proceedings or grant. Arbitration proceedings in Wang'uru Arbitration Cause No. 25/2004, in which the tribunal agreed with the plaintiffs, corroborated the court's finding.

p. 3
02

Whether subsequent sub-divisions and transfers were valid

Holding

No - all dealings subsequent to the fraudulent registration were illegal, null and void

Reasoning

Having found the root registration fraudulent, the court held that all derivative titles fell with it. Section 26(1)(b) of the Land Registration Act protects proprietors from unscrupulous fraudsters, not fraudsters themselves, so the court could restore the title to the original holder without regard to beneficiaries of the fraud.

p. 3

Legal principles established

#
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership and may only be challenged on the ground of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • Where a court is satisfied that a proprietor committed fraud on a title, it may restore the title to its original holder without regard to beneficiaries of the fraud

Court orders

#
  1. 1.A declaration that the registration of MBOGO MBUI as the proprietor of land parcel No. KABARE/NYANGATI/440 was fraudulent, illegal, null and void
  2. 2.A declaration that all subsequent dealings from 26/6/1972 were equally fraudulent, illegal, null and void and of no legal effect
  3. 3.The Land Registrar, Kirinyaga County is directed to rectify the register by reverting the suit land in the name of original proprietor MBUI MBOGO
  4. 4.Costs of the suit to be borne by the defendant

Authorities

#

Legislation

  • Evidence Actsection 112
  • Limitation of Actions Actsection 4(2)
  • Limitation of Actions Actsection 26(a)
  • Land Registration Act No. 3 of 2012section 26(1)(a) and (b)

Cases cited (2)

  • Samuel Odhiambo Oludhe & 2 Others v Jubilee Jumbo Hardware Ltd
    ELC No.417 of 2015 (Kisumu) (UR)
  • Alice Chemtai Too v The Attorney General & 2 Others
    ELC No.51 of 2014 (Kericho) (U.R)
Jurisdiction invoked
Environment and Land Court jurisdiction under the Land Registration Act and Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Alice Waruguru Mbui & another v Elijah Mithamo Mbui [2021] KEELC 872 (KLR)", Case Analysis (2021). ELC Case of 2017 (Paint/Plaint dated 9th November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/872/eng@2021-11-12

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