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ELCDismissedNairobi ELC Case (formerly HCCC) - plaint dated 4th July 2011· [2021] KEELC 4127 (KLR)

Mark Lecchini v Attorney General & another [2021] KEELC 4127 (KLR)

Environment and Land Court
25 February 2021
SOS. Okong'o
5,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A property buyer defrauded by an imposter could not recover compensation from the Kenyan government because the fraudster was known and no registry error was proved.

What this practically means

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Executive summary

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The plaintiff sued the Registrar of Titles (2nd defendant) and the Attorney General (1st defendant, nominally) for special damages of Kshs. 80,000,000 under section 24 of the Registration of Titles Act (repealed), having lost his title to L.R. No. 214/634 when the real Iqbal Singh Rai succeeded in High Court suit No. 1054 of 2001 cancelling the plaintiff's registration. The plaintiff had purchased the property for Kshs. 8,000,000 from an imposter ('the fake Rai') orchestrated by fraudster Fred Waithaka, who was convicted and sentenced to two years' imprisonment. The court framed three issues: applicability of section 24, entitlement to special damages, and costs. It held that no fraud, error or misdescription occurred in the registration itself: the forged transfer and fake title were presented by the plaintiff's own advocates, and the registrar could not have detected the imposter since the register correctly named Iqbal Singh Rai and the registry does not keep original titles. Following Attorney General v Law Society of Kenya (no liability without fault) and Wibeso Investments, the court found the plaintiff's remedy lay against the known fraudster; public funds under section 24 are available only where the fraudster cannot be found. The court also found the plaintiff failed in his due diligence duty. Obiter, quantum would have been the purchase price of Kshs. 8,000,000, not the pleaded Kshs. 80,000,000 or the claimed Kshs. 150,000,000. The suit was dismissed with costs to the defendants, the court criticising the plaintiff for not raising the claim in the High Court suit.

Key legal issues

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01

Applicability of section 24 of the Registration of Titles Act (repealed) to the plaintiff's claim

Holding

Section 24 does not apply because no fraud, error or mistake occurred in the registration of the plaintiff as owner; the fraud was perpetrated by an imposter and his agent Fred Waithaka, not by the registrar

Reasoning

The court traced the transaction: the plaintiff was defrauded by Fred Waithaka impersonating the registered owner. The plaintiff's own advocates presented the forged transfer and fake title for registration. The fake title did not originate from the Land Registry, which provided no erroneous information. The registrar keeps no original titles and could not have detected the imposter. The known fraudster was convicted, so compensation out of public funds under the proviso to section 24 is unavailable.

p. 5
02

Entitlement to the special damages claimed

Holding

The plaintiff is not entitled to the special damages claimed; in any event quantum would have been the purchase price of Kshs. 8,000,000, not the value of the land at filing or judgment

Reasoning

Following Attorney General v Law Society of Kenya, there is no liability without fault, and no negligence or fraud was proved against the 2nd defendant. Agreeing with Hassanali Asaria and Wibeso Investments, the plaintiff's remedy lies against the known fraudster; courts should not indemnify through public funds losses caused by fraudsters who are known and identifiable. Quantum, if liability existed, would be the purchase price lost.

p. 5
03

Liability for costs

Holding

The plaintiff was condemned to pay the costs of the suit

Reasoning

Under section 27 of the Civil Procedure Act costs are discretionary. The High Court suit had already exonerated the 2nd defendant, who was a party to it; the plaintiff should not have instituted fresh proceedings after losing that suit instead of raising the compensation claim there.

p. 6

Legal principles established

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  • Compensation under section 24 of the Registration of Titles Act (repealed) requires proof of fraud, error or misdescription in registration attributable to the person sought to be charged; no fault on the registrar's part means no claim against public funds
  • There is no liability without fault in Kenya; a plaintiff claiming negligence or compensation must prove fault against the defendant
  • A purchaser has a duty to conduct due diligence on the person from whom he is purchasing the suit property
  • Where compensation under section 24 would be payable, the measure is the purchase price lost, not the value of the land at the time of filing suit or judgment
  • A party who could have pursued a compensation claim in earlier litigation between the same parties over the same land should not be permitted to wage a fresh claim after losing that suit

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the defendants

Authorities

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Legislation

  • Registration of Titles Act, Chapter 281 Laws of Kenya (now repealed)section 24
  • Registration of Titles Act, Chapter 281 Laws of Kenya (now repealed)section 23(1) (as quoted from the High Court suit judgment)
  • Registration of Titles (Forms) (Amendment) Rules, 2005requirement for passport size photos and KRA PIN
  • Civil Procedure Act, Chapter 21 Laws of Kenyasection 27
  • Transfer of Property Act, 1882 of Indiamortgagee's statutory power of sale (referred to in section 24 proviso)

Cases cited (14)

  • Gibbs v Messer
    (1891) AC 247
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    [2019] eKLR
  • Attorney General v Kenya Commercial Bank Limited & 3 others
    (2004) eKLR
  • Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others
    [2013] eKLR
  • Samuel Murimi Karanja & 2 others vs Republic
    [2003] eKLR
  • David Peterson Kiengo & 2 Others v Kariuki Thuo
    [2012] eKLR
  • Gitwany Investment Limited v Tajmal Limited & 3 Others
    [2006] eKLR
  • Falcon Global Logistics Co. Limited v Management Committee of Eldama Ravine Boarding Primary School
    [2018] eKLR
  • Shimoni Resort v Registrar of Titles & 5 others
    [2016] eKLR
  • West End Butchery Limited v Arthi Highway Developers Limited & 6 Others
    [2012] eKLR
  • Attorney General v Law Society of Kenya & another
    [2017] eKLR
  • Kiema Mutuku v Kenya Cargo Hauling Services Ltd
    (1991) 2 KAR 258
  • Wibeso Investments Limited & another v Tamarind Meadows Limited & 5 others
    [2020] eKLR
  • Hassanali Asaria v Sarbjit Singh Rai & 2 Others
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over claims relating to title to land, the claim being brought under section 24 of the Registration of Titles Act (repealed)

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, "Mark Lecchini v Attorney General & another [2021] KEELC 4127 (KLR)", Case Analysis (2021). Nairobi ELC Case (formerly HCCC) - plaint dated 4th July 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4127/eng@2021-02-25

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