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ELCAllowed· [2021] KEELC 4295 (KLR)

Symon Kathombia Njagi v Richaada Mbeere Njiru & another [2021] KEELC 4295 (KLR)

Environment and Land Court
12 February 2021
ECE.C. Cherono
1,954 words in judgment
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The bottom line

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Kenya's Environment and Land Court cancelled a land title bought from a deceased owner's estate, ruling buyers must investigate beyond an official search.

What this practically means

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Executive summary

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The plaintiff, son of the late Njagi Ngari, sued the defendants seeking cancellation of the 2nd defendant's registration as proprietor of land parcel No. NGARIAMA/RUNG'ETO/1779 and reversion of the land to the name of his deceased father to pave the way for a succession cause, plus costs. The plaintiff testified that the land, a sub-division of ancestral parcel No. NGARIAMA/RUNG'ETO/1838 held in trust for the family, was sold by his late father on 17th February 2016 to the 1st defendant for Kshs 1,200,000, of which Kshs 414,060 remained unpaid; the land was fraudulently transferred to the 1st defendant on 23rd March 2017, about ten months after the father's death, and later transferred to the 2nd defendant while the suit was pending. The 1st defendant maintained he followed proper procedure, while the 2nd defendant claimed to be a bona fide purchaser for value without notice. The court framed three issues and held that although title enjoys sanctity, Section 26(1) of the Land Registration Act and Article 40(6) of the Constitution permit challenge where title is procured by fraud, illegality, un-procedural means or corrupt scheme. The land was ancestral, occupied and developed by the family, facts uncontroverted; the 1st defendant failed to exercise due diligence beyond a search, and his sale during the pendency of the suit showed the title was not above board. The court applied Milan Kumar Shah mutatis mutandis, entered judgment for the plaintiff, ordered cancellation of the 2nd defendant's name and reversion of the land to Njagi Ngari (deceased), and awarded costs against the defendants jointly and severally. Judgment was delivered at Kerugoya on 12th February 2021 by E.C. Cherono, ELC Judge.

Key legal issues

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01

Fraudulent and irregular acquisition of the suit land from a deceased proprietor

Holding

The transfer of the suit land to the 1st defendant was fraudulent and irregular; the land was ancestral land held in trust for the family and sold without the family's consent, and the subsequent transfer during the pendency of the suit showed the title was not above board.

Reasoning

The court found the land was ancestral land held in trust, occupied and extensively developed by the plaintiff's family, facts uncontroverted by the defence. The 1st defendant did not conduct due diligence beyond a search, and sold the land to the 2nd defendant while the suit was pending, indicating knowledge that the title process was tainted. Protection under Article 40(6) and Section 26(1) of the Land Registration Act was accordingly removed.

p. 2
02

Limits of indefeasibility of title

Holding

Title is protected except on grounds of fraud, misrepresentation, illegality, un-procedural acquisition or corrupt scheme under Section 26(1) of the Land Registration Act and Article 40(6) of the Constitution.

Reasoning

The court adopted the reasoning in Milan Kumar Shah that registration is absolute and indefeasible only where the title was created in accordance with applicable law and not procured through fraud or corrupt scheme, and applied it mutatis mutandis. Where illegality is demonstrated, courts have a duty to nullify the title, as sanctioned by the constitutional and statutory provisions cited.

p. 3

Legal principles established

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  • A certificate of title is indefeasible but may be challenged on the ground of fraud or misrepresentation to which the proprietor is proved to be a party, or where acquired illegally, un-procedurally or through a corrupt scheme
  • Due diligence by a purchaser of land goes beyond conducting an official search; it includes ascertaining whether the land is ancestral land, occupied and developed by persons other than the seller
  • Constitutional protection of property rights under Article 40(6) may be removed where title was acquired through fraud, illegality or corrupt scheme

Court orders

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  1. 1.An order of cancellation of the 2nd defendant's name as the owner of the land parcel No. NGARIAMA/RUNG'ETO/1779 and the said land to revert to the names of Njagi Ngari (deceased) to pave way for a succession cause to be undertaken
  2. 2.The costs of the suit to be borne by the defendants jointly and severally

Authorities

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Legislation

  • Land Registration ActSection 26(1)(a) and (b)
  • Constitution of Kenya, 2010Article 40(6)

Cases cited (2)

  • Milan Kumar Shah and 2 others Vs City Council of Nairobi & Attorney General
    HCC Suit No. 1024 of 2005 (O.S)
  • Champaklal Ramji Shah & 3 others Vs A.G & Anor
    HCCC No. 145 of 1997
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and the Environment and Land Court Act

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, "Symon Kathombia Njagi v Richaada Mbeere Njiru & another [2021] KEELC 4295 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4295/eng@2021-02-12

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