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ELCPartially AllowedNot stated in the judgment (ELC Suit, Thika)· [2021] KEELC 2773 (KLR)

Peter Paul Ndururi (suing on behalf of Donor Samuel Wamutu Waiganjo) v Kimani Njuguna & 6 others [2021] KEELC 2773 (KLR)

Environment and Land Court
24 June 2021
LGL. GACHERU
6,845 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land buyer's title despite his innocence, because the sellers never owned the land in the first place.

What this practically means

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Executive summary

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The Plaintiff sued as donee under a Power of Attorney from Samuel Wamutu Waiganjo, who was allotted Unsurveyed Plot G (later Thika Municipality Block 9/22) by letter of allotment dated 12th August 1982. When the Plaintiff sought issuance of the lease in 2011, he found the property registered in the names of the 1st and 2nd Defendants, who had transferred it to the 3rd Defendant, Anthony Githaika Kiai, for Kshs. 14,500,000/=, partly financed by Family Bank. The 3rd Defendant pleaded bona fide purchase for value after due diligence and contended the suit was defective for failure to sue Family Bank. The court held that non-joinder of the Bank was not fatal under Order 1 Rule 9. On the root of title, drawing on Munyu Maina v Hiram Gathiha Maina, Republic v City Council of Nairobi and related authorities, it found that the allotment to Waiganjo was never revoked, that the 1st and 2nd Defendants were never allotted the property, and that they could not pass title to the 3rd Defendant. The court distinguished Moses Parantai v Stephen Njoroge Macharia, holding it did not present the same scenario since the vendor there had good title. Invoking Sections 26 and 80(1) of the Land Registration Act, the court held the 3rd Defendant's unprocedurally acquired title impeachable notwithstanding his status as an innocent purchaser for value. Judgment was entered for the Plaintiff in terms of prayers 1, 2 and 3 (permanent injunction, declaration of ownership with cancellation of the Defendants' title, and execution of transfer documents), general damages were refused because the 3rd Defendant is an innocent purchaser in possession, and the 1st and 2nd Defendants were ordered to bear the costs.

Key legal issues

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01

Whether failure to sue Family Bank (the chargee) was fatal to the suit

Holding

No — non-joinder does not defeat a suit under Order 1 Rule 9 of the Civil Procedure Rules.

Reasoning

Relying on the Court of Appeal in William Kiprono Towett v Farmland Aviation Ltd, the court held that Order 1 Rule 9 makes it clear that misjoinder or non-joinder cannot defeat a suit, and the court will deal with the rights and interests of the parties actually before it. The suit was therefore competent without the Bank.

p. 5
02

Who is the bonafide owner of L.R No. Thika Municipality Block 9/22

Holding

The Plaintiff, as donee of the original allottee Samuel Wamutu Waiganjo, proved the root of his title; the 1st and 2nd Defendants never held any title, so the 3rd Defendant's title, acquired unprocedurally, must be impeached.

Reasoning

The allotment of 12th August 1982 to Waiganjo was never revoked and the Plaintiff completed the payments; Ministry of Lands and Thika Registry records contained no evidence of any allotment to the 1st and 2nd Defendants. The 3rd Defendant's vendors therefore had no title to pass. Even as a bonafide purchaser, the 3rd Defendant cannot hold a good title because Section 26 of the Land Registration Act exists to protect the real title holders from unscrupulous procurement of fake registrations.

p. 6
03

Whether the Plaintiff was entitled to the orders sought

Holding

Entitled to injunction, declaration of ownership with cancellation of the 3rd Defendant's title, and rectification/transfer of the property, but not general damages.

Reasoning

The court invoked Section 26(1)(b) of the Land Registration Act as explained in Alice Chemutai Too v Nickson Kipkurui Korir — title procured unprocedurally is impeachable even against an innocent holder — and Section 80(1) empowering rectification of the register where registration was obtained by fraud or mistake. Since the 3rd Defendant is an innocent purchaser for value in possession, general damages were refused.

p. 7
04

Costs

Holding

Costs follow the event, but because the 3rd Defendant is an innocent purchaser for value, the 1st and 2nd Defendants bear the costs.

Reasoning

Under Section 27 of the Civil Procedure Act costs are discretionary and follow the event. The Plaintiff succeeded, but the court's finding that the 3rd Defendant was an innocent purchaser for value led it to place the costs burden on the defaulting 1st and 2nd Defendants.

p. 7

Legal principles established

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  • Misjoinder or non-joinder of parties cannot defeat a suit; the court deals with the rights of the parties actually before it.
  • A registered proprietor whose title is challenged must prove the root of title beyond merely dangling the instrument of title.
  • Once an allotment letter is issued and its conditions met, the land is no longer available for reallocation unless the first allocation is validly cancelled.
  • A person without a good title cannot pass a good title to a transferee.
  • Section 26 of the Land Registration Act permits impeachment of title acquired illegally, unprocedurally or through a corrupt scheme even against an innocent titleholder.

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendants jointly and severally as prayed in the Plaint dated 20th December 2012, in terms of prayers No. 1, 2, and 3 (permanent injunction; declaration of ownership with cancellation of the Defendants' title; execution of transfer documents).
  2. 2.The 1st and 2nd Defendants to bear the costs of the suit.

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 9
  • Land Registration ActSection 26
  • Land Registration ActSection 25
  • Land Registration ActSection 80(1)
  • Civil Procedure ActSection 27

Cases cited (9)

  • William Kiprono Towett & 1597 Others Vs Farmland Aviation Ltd & 2 Others
    (2016) eKLR
  • Munyu Maina Vs Hiram Gathiha Maina
    [2013] eKLR
  • Ashmi Investment Limited Vs Riakina Limited & another
    [2017] eKLR
  • Republic Vs City Council of Nairobi & 3 Others
    (2014) eKLR
  • Esther Ndegi Njiru & Another Vs Leonard Gatei
    (2014) eKLR
  • Kenya Anti-Corruption Commission Vs Online Enterprises Limited & 4 others
    [2019] eKLR
  • Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) Vs Stephen Njoroge Macharia
    [2020] eKLR
  • Alice Chemutai Too Vs Nickson Kipkurui Korir & 2 Others
    [2015] eKLR
  • Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & Another
    Eldoret ELC Case No. 609 B of 2012
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (not specifically invoked in the judgment text)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Paul Ndururi (suing on behalf of Donor Samuel Wamutu Waiganjo) v Kimani Njuguna & 6 others [2021] KEELC 2773 (KLR)", Case Analysis (2021). Not stated in the judgment (ELC Suit, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2773/eng@2021-06-24

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