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ELCAllowedELC Case No. 350 of 2017· [2021] KEELC 2280 (KLR)

Wilfred Waweru Karinga v Lenny Kanini Kamau [2021] KEELC 2280 (KLR)

Environment and Land Court
29 July 2021
LGL. Gacheru
1,897 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land title obtained while the property was under dispute, confirming the original claimant as the rightful owner.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant seeking a declaration that the transfer of land parcel Lari/Maingi/T.156 was null and void, cancellation of the Defendant's registration, transfer of the land to himself, and costs. The Plaintiff claimed he had obtained judgment against Joseph Muigai Macharia in Civil Suit No. 2736 of 1995 (Kiambu) for transfer of the parcel, having acquired rights by adverse possession, only to discover in August 2016 that the Defendant had been registered as proprietor. The Defendant, duly served, filed a defence asserting he bought the land from Macharia with a title issued on 27th December 1995, but never gave oral evidence; his advocate later ceased acting. The suit proceeded ex parte on 3rd July 2017. The court framed two issues: rightful ownership and entitlement to reliefs. It held that the judgment and orders in Civil Suit No. 2736 of 1995 were valid and never set aside, and that the Defendant processed his title while that suit was pending, an act intended to defeat the Plaintiff's rights. Applying Section 107 of the Evidence Act, the court stressed that uncontroverted evidence is not automatic evidence but found the Plaintiff had discharged the burden on a balance of probability. Relying on Section 80(1) of the Land Registration Act, the court declared the Defendant's title illegal, cancelled it, declared the Plaintiff the rightful owner, and entered judgment in terms of prayers (a), (b), (c) and (d) of the Plaint, including costs. Judgment was delivered virtually on 29th July 2021 under the COVID-19 directives.

Key legal issues

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01

Ownership of land parcel Lari/Maingi/T.156

Holding

The transfer of the suit land to the Defendant was not proper; the Plaintiff is the rightful owner.

Reasoning

The judgment and orders in Civil Suit No. 2736 of 1995 were never appealed or set aside and remain valid. The Defendant obtained and processed his title while that suit was pending, defeating the Plaintiff's rights. The Defendant filed no evidence, so the Plaintiff's evidence stood uncontroverted, and the court held the transfer was not proper.

p. 3
02

Validity of the Defendant's title and entitlement to cancellation

Holding

The Defendant's title was illegally obtained and must be cancelled; the Plaintiff proved his case on a balance of probability.

Reasoning

Since the Defendant's title was issued during the pendency of Civil Suit No. 2736 of 1995 without due process, Joseph Muigai Macharia could pass no good title. Under Section 80(1) of the Land Registration Act, the court may cancel a registration obtained by fraud or mistake; the court exercised this power and declared the Plaintiff the rightful owner.

p. 3

Legal principles established

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  • A party who deals with suit property during the pendency of litigation does so to defeat the rights of the other party.
  • Uncontroverted evidence does not automatically discharge a plaintiff's burden of proof under Section 107 of the Evidence Act.
  • A court may order rectification of the register where a registration was obtained by fraud or mistake.

Court orders

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  1. 1.A declaration that the transfer to the Defendant of land parcel No. Lari/Maingi/T.156 was null and void
  2. 2.An order cancelling the registration of the Defendant against the title No. Lari/Maingi/T.156
  3. 3.Transfer of the said land to the Plaintiff
  4. 4.Costs of the suit
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - as implied by the court's establishment; judgment does not expressly state the provision

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, "Wilfred Waweru Karinga v Lenny Kanini Kamau [2021] KEELC 2280 (KLR)", Case Analysis (2021). ELC Case No. 350 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2280/eng@2021-07-29

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