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ELCPartially AllowedNot stated in the extract provided· [2021] KEELC 1735 (KLR)

Daniel Kabiru Ndungu & Lucy Nyambura Kabiru v Molyn Credit Limited, Wilson Kariuki t/a Wiskam Auctioners, Land Registrar & Attorney General (Environment and Land Case Civil Suit 658 of 2016) [2021] KEELC 1735 (KLR)

Environment and Land Court
23 September 2021
5,326 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan lender that fraudulently converted a borrower's title into ownership lost the land but still recovered the unpaid loan debt.

What this practically means

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Executive summary

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The Plaintiffs sued over land Title No. Ngong/Ngong/34016, alleging that the 1st Defendant, having advanced the 1st Plaintiff a loan of Kshs. 1,000,000/- secured by a charge over the property, fraudulently transferred the property to itself on 22nd April 2015 instead of registering a charge, and levied distress against their household goods. The 1st and 2nd Defendants counter-claimed, asserting a sale of the property by agreement dated 9th April 2015 for Kshs. 1,000,000/-, a subsequent tenancy, and an unpaid loan balance of Kshs. 5,368,933/- as at 31st October 2017. The 3rd and 4th Defendants did not enter appearance. After trial, the court found only one transaction existed - a loan secured by the property - noting that the property was valued at Kshs. 3,500,000/- yet was allegedly sold for Kshs. 1,000,000/-; that the LCB consent to transfer predated the alleged sale agreement; that the transfer was effected before the loan was disbursed; and that no evidence of payment of the purchase price or of any tenancy was tendered. Applying sections 143(1) and (2) of the Registered Land Act and sections 24, 25 and 26 of the Land Registration Act 2012, the court declared the transfer illegal and fraudulent, ordered rectification of the register within 60 days, restoration of the property to the 1st Plaintiff, and issued an injunction against distress or interference with the Plaintiffs' occupation. The 1st Defendant obtained judgment for Kshs. 5,368,933/- with interest, the proved unpaid loan. Eviction, buy-back and rent arrears claims failed. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the transfer of the suit property to the 1st Defendant was fraudulent and illegal

Holding

Yes. The court found only one transaction existed - a secured loan - and that the 1st Defendant manipulated the papers to transfer the property to itself.

Reasoning

The property was valued at Kshs. 3,500,000/- by a Government valuer yet was allegedly sold for Kshs. 1,000,000/- to a party that simultaneously advanced a further Kshs. 1,000,000/- loan. The LCB consent to transfer was dated 10th March 2015, before the alleged sale agreement of 9th April 2015, and the transfer was registered before the loan was disbursed. The demand letter and CRB report described the loan as secured. No evidence of payment of the purchase price or of a tenancy was tendered.

p. 6
02

Whether the Plaintiffs are entitled to the reliefs sought in the plaint

Holding

Entitled to declaration, cancellation of the 1st Defendant's title, restoration of the property to the 1st Plaintiff's name and an injunction; not entitled to an order for the charge document or loan statements.

Reasoning

Having found fraud, the court applied sections 143(1) and (2) of the Registered Land Act and sections 24, 25 and 26 of the Land Registration Act 2012 to order rectification. The prayer for the charge document failed because there was no evidence a charge was registered, and the loan statement had already been produced by the 1st Defendant in evidence.

p. 9
03

Whether the 1st Defendant is entitled to the reliefs sought in its counter-claim

Holding

Partially. Eviction, mandatory injunction, buy-back and rent arrears refused; judgment granted for the outstanding loan balance of Kshs. 5,368,933/- with interest.

Reasoning

Because the acquisition of the property was unlawful, no possession or buy-back order could issue. However, the loan of Kshs. 1,000,000/- was proved and unpaid; the statement of account showed the outstanding sum as at 31st October 2017. The claim for rent arrears, raised only in submissions, was rejected as unpleaded and unsupported by any tenancy relationship.

p. 9

Legal principles established

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  • Fraud must be specifically pleaded, its particulars stated on the face of the pleading, and distinctly proved; it cannot be inferred from facts.
  • A registered proprietor whose root of title is challenged must prove the legality of acquisition, not merely dangle the title instrument.
  • Under the Registered Land Act (s.143) and the Land Registration Act 2012 (s.26), a registration obtained by fraud, mistake or through an illegal, unprocedural or corrupt scheme may be cancelled and the register rectified.
  • Costs follow the event under section 27 of the Civil Procedure Act, but where there is no clear winner each party may bear its own costs.

Court orders

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  1. 1.Declared that land Title No. Ngong/Ngong/34016 was illegally and fraudulently transferred to the 1st Defendant.
  2. 2.Land Registrar, Ngong and/or Kajiado to rectify the register within 60 days by cancelling the 1st Defendant's registration and title deed and restoring the property to the 1st Plaintiff.
  3. 3.Land Registrar, Ngong and/or Kajiado to issue a new title deed in the name of the 1st Plaintiff, to be handed over to the 1st Defendant to hold on the terms on which it was handed over to it by the 1st Plaintiff.
  4. 4.Injunction issued against the 1st Defendant restraining it from levying distress against the Plaintiffs or interfering with their occupation of the suit property save as authorized by a court of competent jurisdiction.
  5. 5.Judgment entered for the 1st Defendant against the 1st Plaintiff in the sum of Kshs. 5,368,933/- with interest at court rates from the date of judgment until payment in full.
  6. 6.Each party to bear its own costs of the suit and the counter-claim.

Authorities

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Legislation

  • Registered Land Act, Chapter 300 Laws of Kenya (now repealed)Sections 27, 28, 143(1) and (2)
  • Land Registration Act, 2012Sections 24, 25, 26
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27

Cases cited (11)

  • Arthi Highway Developers Limited v West End Butchery Limited and 6 Others
    [2015] eKLR
  • Samuel Odhiambo Oludhe & 2 Other v Jubilee Jumbo Hardware Limited & Another
    [2018] eKLR
  • Mary Ruguru Njoroge v John Samuel Gachuma Mbugua & 4 Others
    [2014] eKLR
  • RG Patel v Lalji Makanji
    [1957] EA 314
  • Jennifier Nyambura Kamau v Humphrey Nandi
    [2013] eKLR
  • Koinange & 13 Others v Nyati
    [1984] EA 425
  • Gudka v Dodhia
    C.A No 21 of 1980
  • Richard Ekwesera Onditi v Kenya Commercial Finance Co. Ltd., Nairobi
    CA No.329 of 2009
  • Benson Wandera Okuku v Israel Were Wakho
    [2020] eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR
  • Munyi Maina v Hiram Githiha Maina
    [2013] eKLR
Jurisdiction invoked
Original civil suit under the Environment and Land Court Act (land title and rectification of register); section 27 of the Civil Procedure Act on costs

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, "Daniel Kabiru Ndungu & Lucy Nyambura Kabiru v Molyn Credit Limited, Wilson Kariuki t/a Wiskam Auctioners, Land Registrar & Attorney General (Environment and Land Case Civil Suit 658 of 2016) [2021] KEELC 1735 (KLR)", Case Analysis (2021). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1735/eng@2021-09-23

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