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ELCDismissedELC Suit (application dated 9/10/2020)· [2021] KEELC 3010 (KLR)

Lakeview Developments Limited v Belgo Holdings Limited & another [2021] KEELC 3010 (KLR)

Environment and Land Court
10 May 2021
4,434 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to strike out a land claim, confirming that registered titles obtained through alleged fraud can still be challenged in a full trial.

What this practically means

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Executive summary

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The 1st Defendant, Belgo Holdings Limited, applied by notice dated 9/10/2020 for the dismissal or striking out of the Plaintiff's suit, contending that the suit was frivolous, vexatious, an abuse of process, res judicata, and time barred, and that previous judgments in HCCC No. 266 of 2005, Constitutional Petition No. 21 of 2016 and ELC No. 545 of 2012 had declared it the lawful proprietor of the suit property as judgments in rem conclusive under Section 44 of the Evidence Act. The Plaintiff contended that the 1995 sale of the property for Kshs. 20 million was never paid for, that it discovered the fraud in 2018 and rescinded the transaction, that it was never party to the earlier suits, and that the 1st Defendant holds the property in trust. The Attorney General supported the Plaintiff, arguing that fraud and its discovery are matters for trial and that a company cannot be condemned unheard. Bor J held that res judicata requires the same parties and the same matter directly and substantially in issue; the Plaintiff was not a party to the former suits and the legality of the transfer from the Plaintiff was never determined, so the decree was not final. A judgment in rem cannot confer title where fraud or unlawful acquisition is alleged. Fraud and the time of its discovery are matters for trial, and Article 40 protection does not extend to unlawfully acquired property. The application was dismissed with costs in the cause.

Key legal issues

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01

Res judicata

Holding

The plea fails because the Plaintiff was not a party to the previous suits and the legality of the transfer of the Suit Property from the Plaintiff to the 1st Defendant was never determined in them.

Reasoning

Section 7 of the Civil Procedure Act requires identity of parties and of the matter directly and substantially in issue. The earlier judgments declared the 1st Defendant proprietor but did not address how the property was acquired from the Plaintiff. The decree in HCCC No. 266 of 2005 was therefore not final on the issue now raised.

p. 4
02

Judgments in rem under Section 44 of the Evidence Act

Holding

The previous judgments are not conclusive proof of entitlement because none declared the 1st Defendant entitled to the property absolutely as against the whole world including the Plaintiff.

Reasoning

A judgment in rem would be conclusive only if it declared entitlement absolutely. The decree extracted on 21/12/2008 did not address how the 1st Defendant came to be proprietor in 1995 or how the land was transferred from the Plaintiff, and cannot be said to be final. Nor can a judgment in rem confer title where fraud or unlawful acquisition is alleged.

p. 4
03

Limitation and fraud

Holding

When the Plaintiff discovered the alleged fraud is a matter to be ascertained at trial; the suit is not struck out as time barred at the interlocutory stage.

Reasoning

The Plaintiff pleaded fraud and misrepresentation and asserted discovery in 2018. Under Section 26 of the Limitation of Actions Act, limitation does not run until the fraud is discovered or could with reasonable diligence have been discovered. The court agreed the issue of discovery of fraud is triable.

p. 4
04

Challenges to registered title and trust

Holding

Protection of property under Article 40 is not absolute and does not extend to unlawfully acquired property; titles can be challenged for fraud, illegality or where the proprietor holds as trustee.

Reasoning

Sections 25, 26 and 28 of the Land Registration Act and, before 2012, Section 23 of the Registration of Titles Act permit challenge of title on grounds of fraud or misrepresentation to which the proprietor was party, and preserve trustee obligations. Whether the 1st Defendant holds the Suit Property in trust for the Plaintiff is a matter for trial.

p. 4

Legal principles established

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  • For res judicata under Section 7 of the Civil Procedure Act the matter must have been directly and substantially in issue in a former suit between the same parties or parties under whom they claim
  • A judgment in rem does not by itself confer title where it is alleged the title was obtained through fraud or unlawfully acquired
  • A proprietor's title may be challenged on grounds including fraud, misrepresentation, illegality or where the proprietor holds as trustee, under Sections 25, 26 and 28 of the Land Registration Act
  • Allegations of fraud and the time of its discovery are matters for trial and cannot be resolved on affidavit evidence in a striking-out application

Court orders

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  1. 1.The application dated 9/10/2020 is dismissed
  2. 2.The costs of the application shall be in the cause

Authorities

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Legislation

  • Evidence ActSection 44
  • Government Lands Act (repealed)Section 136(1)
  • Civil Procedure ActSection 7
  • Land ActSection 7
  • Land Registration ActSections 25(2), 25, 26, 28
  • Registration of Titles Act (repealed)Section 23
  • Limitation of Actions ActSection 26
  • Constitution of Kenya, 2010Article 40

Cases cited (6)

  • Belgo Holdings Limited v John Armstrong Njogu and Others
    HCCC No. 266 of 2005
  • Belgo Holdings Limited v National Land Commission and Another
    Constitutional Petition No. 21 of 2016
  • Belgo Holdings Limited v KURA and Minister of Roads
    ELC No. 545 of 2012
  • Raphael Kavai Maitha and Others v Jays Syndicate Limited and others
    HCCC No. 507 of 2003 (OS)
  • Justus Tureti Obara v Peter Koipeitai Nengisoi
    [2014] eKLR
  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land; Article 40 of the Constitution considered

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, "Lakeview Developments Limited v Belgo Holdings Limited & another [2021] KEELC 3010 (KLR)", Case Analysis (2021). ELC Suit (application dated 9/10/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3010/eng@2021-05-10

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