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ELCPartially AllowedELC Suit No. 1587 of 2014· [2021] KEELC 1041 (KLR)

Mildred Aseyo & another v John Njoroge & 3 others [2021] KEELC 1041 (KLR)

Environment and Land Court
10 November 2021
2,538 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Nairobi court cancelled a forged land title and confirmed that even registered titles collapse when fraud is proven.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of Harun Ndenga Bwondondo (deceased), sued the 1st and 2nd Defendants and the Chief Lands Registrar and Attorney General, seeking a permanent injunction in respect of L.R No. 36/1/180 in Eastleigh, Nairobi, and cancellation of a title allegedly held by the 1st and 2nd Defendants. The Plaintiffs asserted that the deceased acquired the property in 1973 by an Indenture financed through a Kenya Commercial Bank mortgage, that they retained the original title, had occupied and leased the property since 1973, and had never sold or transferred it. The 2nd Defendant had earlier claimed leasehold proprietorship under a lease dated 26th June 2001 issued by the City Council of Nairobi and registered in 2013 as Grant I.R No. 148902. The 1st and 2nd Defendants entered appearance but filed no defence and neither attended the hearing nor tendered evidence; the Attorney General attended but adduced no evidence. A search ordered by the court showed that Grant I.R No. 148902 related to a different parcel, L.R No. 17564/294 owned by Juja South Estate Limited, demonstrating the 2nd Defendant's lease was a forgery. The court held the deceased was the lawful registered owner, that the 2nd Defendant fraudulently acquired the purported lease with the connivance of officers of the 3rd Defendant, and that the Plaintiffs were entitled to the reliefs sought. Judgment was entered for the Plaintiffs with a permanent injunction, cancellation of the fraudulent lease, and costs against the 1st and 2nd Defendants jointly and severally.

Key legal issues

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01

Whether the deceased was the lawful owner of the suit property

Holding

The court found that the deceased was the lawful registered owner of L.R No. 36/1/180, on the strength of the Indenture of 1973, the mortgage instrument, City Council rate payment records and continued possession

Reasoning

The Plaintiffs produced the Indenture dated 8th June 1973, the mortgage instrument in favour of Kenya Commercial Bank, certified land register extracts and rates receipts in the deceased's name. They were in possession and had leased the property to tenants. The 1st and 2nd Defendants filed no defence and adduced no evidence, so the Plaintiffs' evidence stood uncontroverted.

p. 3
02

Whether the 2nd Defendant's title was fraudulently acquired

Holding

The court found the purported lease held by the 2nd Defendant was a forgery and that she acquired the suit property fraudulently

Reasoning

A search conducted on Grant I.R No. 148902, under which the 2nd Defendant claimed the suit property, showed it related to a different parcel, L.R No. 17564/294 owned by Juja South Estate Limited. The court found the lease dated 26th June 2001 was a forgery and that its registration would not have been possible without the connivance of officers of the 3rd Defendant.

p. 3
03

Whether the Plaintiffs were entitled to the reliefs sought

Holding

The Plaintiffs were entitled to a permanent injunction and cancellation of the fraudulent title, with costs against the 1st and 2nd Defendants

Reasoning

Since the 1st and 2nd Defendants had no valid interest in the suit property, the demand for possession was without basis. The court held the fraudulent lease to be illegal, null and void, and granted the injunction and cancellation sought, together with costs.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, but is subject to challenge on grounds of fraud or misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme
  • Fraud must be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt

Court orders

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  1. 1.A permanent injunction restraining the 1st and 2nd Defendants by themselves or through their agents or anyone claiming under them from trespassing, erecting any structure or building, charging, selling, offering for sale, alienating, evicting the Plaintiffs or in any way interfering with L.R No. 36/1/180.
  2. 2.The lease dated 26th June, 2001 issued by the City Council of Nairobi in respect of L.R No. 36/I/180, Grant No. 148902 registered on 21st August, 2013 at the Land Titles Registry as No. I.R 148902/1 is cancelled and the 3rd Defendant shall forthwith cancel it from the register.
  3. 3.The Plaintiffs shall have the costs of the suit to be paid by the 1st and 2nd Defendants jointly and severally.

Authorities

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Legislation

  • Land Registration ActSection 26

Cases cited (2)

  • Republic v Minister For Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collectors & 15 Others
    [2006] 1 KLR (E&L) 563
  • Gichinga Kibutha v Caroline Nduku
    [2018] eKLR
Jurisdiction invoked
Environment and Land Court Act - original jurisdiction over disputes relating to title to land (suit on title L.R No. 36/1/180)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mildred Aseyo & another v John Njoroge & 3 others [2021] KEELC 1041 (KLR)", Case Analysis (2021). ELC Suit No. 1587 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1041/eng@2021-11-10

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