LWN v PLM & 3 others [2021] KEELC 1489 (KLR)
The bottom line
#A Kenyan court dismissed a woman's claim to reclaim land she had transferred to her ex-husband, ruling banks and buyers acted lawfully.
What this practically means
#Executive summary
#Key legal issues
#Whether the sale agreement and transfer from Plaintiff to 1st Defendant were valid
The sale agreement dated 6th June 2001 and transfer dated 18th April 2002 met the requirements of section 3(3) of the Law of Contract Act and were valid, legal and enforceable
The agreement was drawn and executed before an advocate and made no provision for reversion of the property to the Plaintiff on repayment of the loan. The Plaintiff denied signing but adduced no evidence, such as a document examiner, to prove forgery. Under section 97(1) of the Evidence Act, oral evidence cannot contradict the written terms.
Whether the Plaintiff retained any interest or trust over the suit property
The Plaintiff failed to prove a trust and had no proprietary interest or locus standi against the 2nd Defendant
The onus lay on the Plaintiff to prove the alleged trust with evidence. No spousal consent was required under the repealed Registration of Titles Act for pre-2012 transactions. Having sold and transferred her interest, she was a stranger to the subsequent charge and could not enforce rights against the chargee.
Whether the alleged fraud, conspiracy and contempt of the court order was proved
The Plaintiff failed to prove fraud or conspiracy; her failure to enjoin the Principal Registrar of Titles was fatal
Fraud must be strictly proved to a standard above a balance of probabilities. The Plaintiff did not call the Principal Registrar of Titles, who held the records and had cancelled the registered court order, and did not show the 3rd Defendant knew of HCCC No. 3 of 2009. Inferences of fraud from relationships between the parties were unsupported by cogent evidence.
Whether the doctrine of lis pendens bound the 2nd, 3rd and 4th Defendants
The statutory power of sale is not fettered by section 52 of the Transfer of Property Act and the Defendants were not bound by lis pendens
The 2nd Defendant exercised its statutory power of sale under section 69(1) of the Transfer of Property Act. At the time of transfer and registration to the 3rd Defendant there was no subsisting order on the title prohibiting the transaction, the registered order having been cancelled.
Whether the charge in favour of the 2nd Defendant and sale to the 3rd Defendant were regular
The charge was legal, lawful and regular and the 3rd Defendant was an innocent purchaser for value
The 1st Defendant was the registered owner with the right to deal with the property. The 2nd Defendant exercised due diligence and its statutory power of sale upon default. The 3rd Defendant bought at a price above the forced sale value and the Plaintiff proved no bad faith in the private treaty sale.
Legal principles established
#- The certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
- No oral evidence is admissible to contradict or alter the terms of a clear written contract
- Allegations of fraud must be strictly pleaded and proved to a standard above a balance of probabilities but below beyond reasonable doubt
- Charges taken before the enactment of the Land Registration Act 2012 cannot be invalidated for want of spousal consent
- A party relying on the existence of a trust bears the burden of proving it through evidence; the law never implies a trust save in case of absolute necessity
- The equity of redemption is lost on completion of a valid agreement for sale of the charged property
Court orders
#- 1.The plaintiff's suit is dismissed with costs to the Defendants
- Jurisdiction invoked
- Environment and Land Court established under Article 162(2) of the Constitution (original jurisdiction over land disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "LWN v PLM & 3 others [2021] KEELC 1489 (KLR)", Case Analysis (2021). ELC Case No. 358 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1489/eng@2021-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.