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ELCPartially AllowedNakuru ELC Civil Suit· [2021] KEELC 3261 (KLR)

Margaret Njoki Njoroge v Elizabeth Wairimu Kinuthia & another [2021] KEELC 3261 (KLR)

Environment and Land Court
20 May 2021
DOD. O. Ohungo
1,766 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 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 forged transfers cannot survive even after the land is charged to a bank.

What this practically means

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Executive summary

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The plaintiff sued alleging that the 1st defendant, her niece, fraudulently forged her signature on a land control board consent application and transfer form in September 2014 and transferred the suit property, Nakuru Municipality Block 22/728, to herself. The plaintiff, who resides and works in Switzerland, had purchased the land in 1996 and was registered as owner on 31st July 1996. The 1st defendant then charged the property to the 2nd defendant to secure a loan of KShs 3,350,000, defaulted, and statutory sale proceedings commenced, prompting the plaintiff to redeem the loan. She sought a declaration of fraud, an injunction against the 2nd defendant, rectification of the register, and costs. The 1st defendant did not participate; the suit against the 2nd defendant was discontinued by consent with no order as to costs. The court applied Section 26 of the Land Registration Act and the Arthi Highway Developers authority on the standard of proving fraud. Relying on the plaintiff's passport showing she was out of Kenya when the documents were executed, and the absence of any testimony from the 1st defendant or the attesting advocate, the court found fraud proved and the 1st defendant's title impeachable. The injunction against the 2nd defendant was declined because the suit against that defendant had been withdrawn. Judgment was entered for the plaintiff on 20th May 2021.

Key legal issues

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01

Whether the 1st defendant acquired the suit property fraudulently

Holding

Fraud was proved; the transfer was executed by forgery while the plaintiff was out of the country

Reasoning

The transfer and land control consent were both dated 18th September 2014, yet the plaintiff's passport showed she was out of Kenya then. Neither the 1st defendant nor the attesting advocate testified to contradict her. The court therefore found the transfer fraudulent and the resulting title impeachable under Section 26 of the Land Registration Act.

p. 2
02

Whether subsequent dealings, including the charge to the 2nd defendant, survive the finding of fraud

Holding

The charge and all subsequent dealings were clouded by the fraud

Reasoning

Having found the root title of the 1st defendant fraudulent, the court held that all her subsequent dispositions, including the charge in favour of the 2nd defendant, were tainted. The plaintiff was declared lawful owner and the register was ordered rectified.

p. 2

Legal principles established

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  • Fraud must be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt
  • A registered title may be challenged on the ground of fraud or where acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.Declaration that the transfer of Title Number Nakuru Municipality Block 22/728 from the plaintiff to the 1st defendant was fraudulent
  2. 2.Declaration that the plaintiff is the lawful owner of title number Nakuru Municipality Block 22/78
  3. 3.District Land Registrar Nakuru ordered to rectify the register by cancelling the 1st defendant and replacing her with the plaintiff
  4. 4.Costs of the suit awarded to the plaintiff, borne by the 1st defendant
  5. 5.Suit against the 2nd defendant discontinued by consent with no order as to costs
  6. 6.Prayer for injunction against the 2nd defendant not granted

Authorities

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Legislation

  • Land Registration ActSection 26

Cases cited (1)

  • Arthi Highway Developers Limited Vs. West End Butchery Limited & 6 Others
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act 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, "Margaret Njoki Njoroge v Elizabeth Wairimu Kinuthia & another [2021] KEELC 3261 (KLR)", Case Analysis (2021). Nakuru ELC Civil Suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3261/eng@2021-05-20

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