Catholic Diocese of Nakuru v Abdi Fatah Ali Hassan & another [2021] KEELC 1127 (KLR)
The bottom line
#A Kenyan court cancelled a land buyer's title because the buyer could not prove how the title originally came into existence.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff was allocated the unsurveyed plot 'A' Nakuru Municipality
The court found the plaintiff was allocated the plot by letter of allotment dated 3rd April 1996, accepted it and paid the allotment charges, becoming the beneficial owner and remaining in possession
The plaintiff applied in 1989 for land to extend Elimu Nursery School. The Commissioner of Lands allotted unsurveyed plot 'A' vide letter 30884/XLIV of 3rd April 1996 with a PDP appended. The plaintiff accepted by letter dated 9th April 1996 and paid Kshs.6,034 by banker's cheque. Correspondence with the District Commissioner confirmed the allocation, and occupation since 1996 was unrebutted.
Whether plot Nakuru Municipality Block 5/306 overlapped the plot allocated to the plaintiff
The court held the plot allocated to the plaintiff and plot 306 occupied the same spot on the ground or overlapped considerably
PW1 testified plot 306 was where the Elimu Nursery School stood, and DW1 admitted the school plot extended onto plot 306 by 6 metres. The land where the plaintiff's structures stood was unsurveyed and absent from the RIM. The court concluded the two plots shared the same location or overlapped to a considerable extent.
Whether the title to plot 5/306 was regularly registered and whether the 1st defendant was a bona fide purchaser for value
The title was not regularly or procedurally registered; the 1st defendant's conduct was not that of an innocent purchaser and his title was vulnerable under section 26(1)(b) of the Land Registration Act
The Land Registrar and Ministry of Lands officials could not trace any records supporting the title; the green card, white card and survey records were missing, and the RIM showed no amendment particulars. The 1st defendant failed to establish the root of Lesonet's title. The transaction's unusual speed (consent, registration and title all on 1st August 2014) raised suspicion, and the 1st defendant did not extend due diligence to the Department of Surveys despite surrounding institutions.
Whether the plaintiff's suit was statute barred under section 7 of the Limitation of Actions Act
The suit was not statute barred; the cause of action arose in August 2014 when the 1st defendant attempted to enter the land
The 1st defendant was only registered on 1st August 2014. The plaintiff had been in possession since the 1996 allotment. Only a previous registered owner could have sued the plaintiff for recovery, and in such an event the plaintiff could have pleaded limitation or adverse possession. Limitation therefore did not bar the claim against the 1st defendant.
Legal principles established
#- Where a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership; the proprietor must prove the legality of how he acquired title
- A certificate of title may be challenged where the title has been acquired illegally, unprocedurally or through a corrupt scheme
- A title must have a source; for government land ownership is initiated from a letter of allotment which must be accepted, surveyed, and a lease processed and signed by the Commissioner of Lands before registration
Court orders
#- 1.Declaration that the plaintiff is the beneficial owner of UNS.NURSERY SCHOOL PLOT 'A'-NAKURU MUNICIPALITY allotted vide letter of allotment dated 3rd April 1996 Ref.30884/XLIV
- 2.Declaration that land parcel Nakuru Municipality Block 5/306 registered in the 1st defendant's name was irregularly and unprocedurally registered and is null and void
- 3.The Chief Land Registrar directed to cancel land parcel Nakuru Municipality Block 5/306 from the register and to process title in favour of the CATHOLIC DIOCESE OF NAKURU on the basis of the letter of allotment dated 3rd April 1996
- 4.Permanent injunction restraining the 1st defendant from in any manner dealing with or interfering with LR No. Nakuru Municipality Block 5/306
- 5.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catholic Diocese of Nakuru v Abdi Fatah Ali Hassan & another [2021] KEELC 1127 (KLR)", Case Analysis (2021). Nakuru ELC (as stated in judgment; plaint dated 10th September 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1127/eng@2021-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.