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ELCPartially AllowedELC Case No. 82 of 2014· [2021] KEELC 2128 (KLR)

Shariff Mohamed Omar & another v Ornella Bontempi Luigi [2021] KEELC 2128 (KLR)

Environment and Land Court
31 August 2021
JOJ. O. Olola
2,325 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a fraudulently obtained land title, confirming that a title deed alone does not prove lawful ownership.

What this practically means

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Executive summary

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The two Plaintiffs, Shariff Mohamed Omar and Boganvillea Cottages Limited, sued over sub-division No. 5650 Malindi, alleging that although the 1st Plaintiff and the late Bontempi Luigi had jointly agreed in December 1991 to purchase the property as an asset of the 2nd Plaintiff company, the Defendant procured registration of the property in his sole name in 1994 (registered 14th May 1997). The Plaintiffs sought a declaration that the transfer and all subsequent dealings were null and void, revocation of the indenture, cancellation of the registration, issuance of a new title in the 2nd Plaintiff's name, and general damages for loss of user. The original Defendant raised a preliminary objection on res judicata (Mombasa HCCC No. 255 of 1995) and on the derivative nature of the action, which was dismissed in a ruling of 31st October 2014 by Angote J on the basis that the earlier Mombasa suit did not concern the suit property. Safe Haven Ltd was enjoined as 2nd Defendant but later withdrew its defence and counterclaim by consent. After the Defendant's death, Ornella Bontempi Luigi was substituted as his legal representative. At trial only the 1st Plaintiff testified, producing the sale agreement and the indenture; the Defendant called no evidence. The court, applying Munyu Maina v Hiram Gathiha Maina, held that a registered proprietor whose root of title is challenged must prove the legality of the acquisition; the Defendant gave no explanation, and the Plaintiffs' claim succeeded on a balance of probabilities. The court declared the transfer illegal and nullified subsequent dealings, ordered revocation of the indenture, cancellation of the registration and issuance of a new title to the 2nd Plaintiff, and awarded costs to the Plaintiffs. The claim for damages for loss of user failed for want of strict proof.

Key legal issues

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01

Whether the transfer and registration of the suit property in the Defendant's sole name was illegal

Holding

Yes. The sale agreement was executed jointly by the 1st Plaintiff and the Defendant, but the Indenture captured only the Defendant as sole transferee. The Defendant produced no documents and gave no explanation for the sole registration or payment of the balance, so the Plaintiffs' case succeeded on a balance of probabilities.

Reasoning

The court found the sale agreement of 26th December 1991 showed a joint purchase by the 1st Plaintiff and the Defendant, yet the Indenture omitted both Plaintiffs. The Defendant neither testified nor produced documents and did not purport to have paid the balance. Applying Munyu Maina v Hiram Gathiha Maina, the burden lay on the registered proprietor to explain the acquisition; in the absence of rebuttal, the Plaintiffs' claim was proved on a balance of probabilities.

p. 3
02

Burden on a registered proprietor whose title is challenged

Holding

The registered proprietor must go beyond the title instrument and prove legality of acquisition, per Munyu Maina v Hiram Gathiha Maina.

Reasoning

The court adopted the Court of Appeal's holding that dangling the instrument of title is insufficient where the root of title is under challenge. The proprietor must prove the acquisition was legal, formal and free from encumbrances. As the Defendant gave no explanation of how the sole registration came about, he failed to discharge that burden.

p. 3
03

Whether general damages for loss of user were payable

Holding

No. Such damages are special damages which must be strictly proved, and none was proved.

Reasoning

Although the Plaintiffs prayed for general damages for loss of user, the court classified such damages as special damages requiring strict proof. The Plaintiffs led no evidence quantifying or proving the loss, so the court declined to award any figure under that head.

p. 3

Legal principles established

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  • A registered proprietor whose root of title is under challenge must go beyond the instrument of title and prove the legality of the acquisition

Court orders

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  1. 1.A declaration that the suit property has been illegally transferred to the Defendant and that any dealings on the property subsequent to the said transfer are null and void and of no effect
  2. 2.An order directed to the Registrar of Lands to revoke the indenture dated 15th August 1994
  3. 3.An order directed to the Registrar of Lands to cancel the registration of the indenture dated 14th May 1997
  4. 4.An order directed to the Registrar of Lands to issue a new title in the name of the 2nd Plaintiff company - Bouganvillea Cottages Ltd
  5. 5.The Plaintiffs shall have the costs of this suit

Authorities

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Cases cited (1)

  • Munyu Maina –vs- Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009 [2013] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - original jurisdiction over land disputes

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, "Shariff Mohamed Omar & another v Ornella Bontempi Luigi [2021] KEELC 2128 (KLR)", Case Analysis (2021). ELC Case No. 82 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2128/eng@2021-08-31

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