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ELCAllowedELC Case No. 350 of 2017· [2021] KEELC 2995 (KLR)

Charles Ray Coulston & 2 others v Henry Kiarie Waweru & another [2021] KEELC 2995 (KLR)

Environment and Land Court
29 April 2021
1,171 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Nairobi court cancelled a suspiciously acquired land title because the new owner could not explain how the transfer happened.

What this practically means

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Executive summary

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The three Plaintiffs, trustees of Made in the Streets, a registered charitable children institution, sued the 1st Defendant and the Chief Land Registrar claiming to be the registered proprietors of L.R. No. 36/880/1, Nairobi, where they have operated a rehabilitation centre for street children since acquiring the land in 1999. Upon discovering in May 2017 that the original title was missing from their records, a search revealed a transfer to the 1st Defendant for Kshs. 25,000,000 effected in unclear circumstances. The Plaintiffs alleged the transfer was fraudulent and collusive between the 1st Defendant and the Chief Land Registrar, since they still held the original title. They sought a declaration of ownership, revocation of the 1st Defendant's title, rectification of the register and costs. The 1st Defendant could not be traced and was served by substituted advertisement in the Daily Nation; he did not enter appearance or file a defence, and no evidence was adduced on his behalf. The 2nd Defendant entered appearance but filed no defence. Francis Mbuvi Maithia testified for the Plaintiffs, producing the title, the 1999 sale agreement and transfer, and a valuation report of the developments on the land. The court framed one issue: whether the orders sought should be granted. Holding that the Plaintiffs never transferred the land, still held the original title, and that the 1st Defendant had tendered no evidence of how the transfer occurred, the court found the transfer unlawful and granted prayers (a), (b), (c) and (d) of the plaint, with costs to the 1st Defendant.

Key legal issues

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01

Whether the Suit Property was validly transferred to the 1st Defendant

Holding

The court found the transfer to the 1st Defendant was unlawful and granted the prayers sought, including revocation of his title and rectification of the register.

Reasoning

The Plaintiffs traced their root of title to a 1999 purchase from Mahmud Ega Musa and remained in possession of the land and the original title. They denied ever selling or consenting to any transfer. The 1st Defendant, though served by substituted advertisement, did not appear or adduce any evidence explaining the transfer. Possession of the original title by the Plaintiffs raised doubt as to the propriety of the 1st Defendant's registration, and no evidence countered the Plaintiffs' case.

p. 2
02

Whether an agreement for the sale of land must be in writing and executed before witnesses

Holding

The court accepted the Plaintiffs' reliance on Section 3(3) of the Law of Contract Act; the Plaintiffs having never executed any written agreement with the 1st Defendant, no valid transaction existed.

Reasoning

The Plaintiffs' submissions invoked Section 3(3) of the Law of Contract Act to show that any agreement relating to land must be in writing and executed by the parties before witnesses. Since the Plaintiffs maintained they never engaged in any transaction with the 1st Defendant, and he led no evidence of such an agreement, the transfer was undertaken clandestinely without their knowledge and could not be upheld.

p. 2

Legal principles established

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  • A party alleging a transfer of land must tender evidence showing how the transfer to him was effected; registration obtained without proof of a valid transaction cannot stand.

Court orders

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  1. 1.Grants prayers (a), (b), (c) and (d) of the plaint dated 25/5/2017 (declaration of ownership, revocation of the 1st Defendant's title, rectification of the land records by cancelling the 1st Defendant and substituting the Plaintiffs)
  2. 2.Plaintiffs granted costs of the suit to be borne by the 1st Defendant

Authorities

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Legislation

  • Law of Contract ActSection 3(3)

Cases cited (2)

  • Daudi Ledama Morintat v Mary Christine Kiarie and 2 others
    [2017] eKLR
  • Kibiro Wagoro Makumi v Francis Nduati Macharia and Another
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land

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, "Charles Ray Coulston & 2 others v Henry Kiarie Waweru & another [2021] KEELC 2995 (KLR)", Case Analysis (2021). ELC Case No. 350 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2995/eng@2021-04-29

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