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ELCDismissedNaivasha ELC Case of 2015 (Plaint dated 13th August 2015, amended 1st September 2015)· [2021] KEELC 1142 (KLR)

Jane Wanjiru S Kimani & another v Peter Karatu Kimani & 2 others [2021] KEELC 1142 (KLR)

Environment and Land Court
4 November 2021
3,720 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiffs, widow and relation of the late Samuel Kimani Mwaura, claimed that the deceased bought shares in Naivasha Unity Farmers' Co-operative Ltd between 1975 and 1996, received ballot No. 329 and was allocated land parcel Naivasha/Maraigushu Block 18/1152. They sought injunction, cancellation of titles and eviction, alleging the 1st defendant trespassed and obtained registration in 2009, the 2nd defendant irregularly removed their caution, and the 3rd defendant fraudulently obtained registration in 2012. Only the 3rd defendant entered appearance, pleading he was an innocent purchaser for value from the registered proprietor under a sale agreement of 20th March 2012, with indemnity notice against the 1st defendant. The court framed four issues. On the first, it found the plaintiffs had produced only receipts and a ballot paper, no share certificate, members register or plot allocation list, and no company witness, and could not show ballot 329 corresponded to the suit parcel; nor was possession by the deceased proved. On fraud, the court held fraud must be specifically pleaded and distinctly proved to a standard above balance of probabilities but below criminal proof, and cannot be inferred from facts. On indefeasibility, the 3rd defendant, registered on 15th October 2012 when no caution subsisted and having carried out a search, was held to be a bonafide purchaser for value without notice whose title under sections 24, 25 and 26 of the Land Registration Act was absolute and indefeasible. The suit was dismissed with costs to the 3rd defendant, and the plaintiff's caution was ordered removed.

Key legal issues

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01

Whether the deceased was the beneficial allottee of the suit property

Holding

Not proved; receipts, a ballot paper and payments did not establish allocation of the specific parcel

Reasoning

The plaintiffs produced receipts and ballot paper No. 329 but no share certificate, no certified members register, no members list of plot allocations, and called no company official. There was also no evidence of possession by the deceased, and a discrepancy between the claimed one-acre plot and the half-acre suit parcel. The court was not satisfied the deceased was allocated the suit property.

p. 3
02

Whether the 3rd defendant was a bonafide purchaser for value without notice

Holding

Yes; he bought from the registered proprietor, obtained a search, and no encumbrance existed at registration

Reasoning

The 3rd defendant entered a sale agreement of 20th March 2012 with the 1st defendant, the registered proprietor, paid the full purchase price, conducted a search on 21st March 2012, and was registered on 15th October 2012 when no caution subsisted. There was no evidence he was party to the removal of the plaintiff's caution, so he was entitled to assume regularity.

03

Whether fraud was proved against the defendants

Holding

No; fraud must be pleaded with particulars and proved to a standard above balance of probabilities, not inferred

Reasoning

The plaintiffs merely averred fraud without distinct proof. The court applied the high standard of proof for fraud and held that allegations cannot be left to inference, citing Kinyanjui Kamau v George Kamau Njoroge and Vijay Morjaria v Nansingh Madhusingh Darbar. Neither the 1st nor 3rd defendant was shown to have participated in fraud.

p. 4
04

Indefeasibility of the 3rd defendant's title under the Land Registration Act

Holding

Title vested absolutely under sections 24, 25 and 26 LRA and was not impeached

Reasoning

Upon registration on 15th October 2012 the 3rd defendant acquired absolute rights under sections 24 and 25 of the Land Registration Act, 2012, challengeable only under section 26(1)(a) and (b). Since no fraud or misrepresentation to which he was party, and no illegality or corruption, was proved, his title was indefeasible and the caution was unjustified.

p. 3

Legal principles established

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  • A registered proprietor's title is indefeasible and can only be challenged on fraud or misrepresentation to which he is party, or where acquired illegally, unprocedurally or through a corrupt scheme (section 26(1) LRA)
  • Fraud must be specifically pleaded and distinctly proved; it cannot be inferred from the facts
  • He who alleges bears the burden of proof; a claimant through a deceased allottee must prove allocation, not merely payments
  • A bonafide purchaser for value without notice acquires an indefeasible title and is entitled to rely on the register

Court orders

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  1. 1.The plaintiffs' suit is dismissed with costs to the 3rd defendant
  2. 2.The caution registered against the title by the 1st plaintiff should be removed

Authorities

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Legislation

  • Land Registration Actsections 24, 25, 26(1)(a) and (b)
  • Evidence Act (Cap 80 Laws of Kenya)section 107

Cases cited (10)

  • Munyu Maina -vs- Hiram Gathiha Maina
    (2013) eKLR
  • Gichinga Kibutha -Vs- Caroline Nduku
    (2018) eKLR
  • Koinange & 13 others –vs- Koinange
    (1986) KLR 23
  • Ratilal Gordhanbhai Pater -vs- Lalji Makanji
    91957) EA314
  • Ulmila Mahindra Shal -vs- Barclays Bank International & Another
    (1979) eKLR
  • Shimoni Resort -Vs- Registrar of Titles & 5 others
    (2016) eKLR
  • Samuel D Omwenga Agwenyi -vs- National Land Commission & 2 others
    (2019) eKLR
  • Charles Kaaraathe Kiarie & 2 Others -Vs- Administrators of Estate of John Wallace Mathare (deceased) & 5 others
    (2013) eKLR
  • Kinyanjui Kamau -Vs- George Kamau Njoroge
    (2015) eKLR
  • Vijay Morjaria -Vs- Nansingh Madhusingh Darbar & Another
    (2000) eKLR Civil Appeal No.106 of 2000
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (Environment and Land Court Act); suit commenced by plaint

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, "Jane Wanjiru S Kimani & another v Peter Karatu Kimani & 2 others [2021] KEELC 1142 (KLR)", Case Analysis (2021). Naivasha ELC Case of 2015 (Plaint dated 13th August 2015, amended 1st September 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1142/eng@2021-11-04

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