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ELCOtherELC No. 210 of 2017· [2021] KEELC 4636 (KLR)

CNR & another v DWK (suing through her son and Guardian JKK) [2021] KEELC 4636 (KLR)

Environment and Land Court
21 January 2021
3,826 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled both competing land titles because neither side could prove how the land was originally acquired.

What this practically means

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Executive summary

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The plaintiffs, mother and daughter and administrators of the estate of KKK, sued the defendant (a person adjudged to be of unsound mind, suing through her son and guardian appointed in HCCC Misc No 560 of 2015) claiming she had fraudulently acquired a duplicate title to land registered in the name of the deceased, Ruiru East/Juja East Block x/xxxx. They sought a permanent injunction, cancellation of the defendant's title and registration in the name of the 1st plaintiff. The defendant denied the claim and counterclaimed for a declaration that she was the rightful owner and an injunction against the plaintiffs. The Land Registrar testified that the parcel had two registered owners, dated 17/9/1990 and 25/11/1999 respectively, and that duplication of titles was common in the Juja/Ruiru area; the membership register and share certificate showed the land was allocated to Karanja Kinyua. The court framed four issues: proof of fraud and illegality, ownership as between the competing claimants, the orders to grant, and costs. Applying section 109 of the Evidence Act, Order 2 Rule 10 of the Civil Procedure Rules and sections 26 and 80 of the Land Registration Act, and the authorities in Koinange v Koinange and Munyu Maina v Hiram Gathiha Maina, the court held that fraud must be specifically pleaded and strictly proved, and that a proprietor whose title is challenged must prove how it was acquired. Neither party did so: the plaintiffs produced no documents of acquisition and no proof that their deceased's names matched the allottee's; the defendant's confirmation of grant did not disclose the suit land. Both the plaintiffs' suit and the defendant's counterclaim were dismissed. Both titles were cancelled, the land was ordered registered in the name of Karanja Kinyua, subject to a restriction until he or his legal representative collects the title, and each party was ordered to bear their own costs.

Key legal issues

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01

Whether fraud and illegality on the part of the Defendant were pleaded and proved

Holding

Not proved; there were no particulars of fraud in the plaint and the court could not infer fraud

Reasoning

The plaint contained no particulars of fraud or illegality as required by Order 2 Rule 10(1)(a) and (2) of the Civil Procedure Rules. Fraud must be pleaded with particularity and proved by evidence to a heightened standard. PW1 admitted in cross-examination that she was not aware the Defendant held a title. In the absence of evidence the court could not infer fraud.

p. 4
02

Whether the two sets of names (KKK and KKK) refer to one person, the allottee Karanja Kinyua

Holding

The Plaintiffs failed to prove that the names belonged to one and the same person; no registered change of name or deed poll was produced

Reasoning

Under section 109 of the Evidence Act the burden lay on the Plaintiffs to prove the identity of names. They produced a grant in one name and a title in another, and despite leave, failed to file a copy of the ID. The court found the connection doubtful and found no nexus between the Plaintiffs' claimant and the allottee.

p. 3
03

Whether the Defendant's title could stand on the strength of the confirmation of grant to her husband's estate

Holding

No; the grant did not disclose the suit land and the green card did not show registration by succession

Reasoning

The certificate of confirmation of grant to the estate of EKK did not include the suit land or the shares in Juja Farms Limited, and no documents executed by the Public Trustee transmitting the land to the Defendant were produced. The green card was silent on succession. Without cogent evidence linking EKK to the allottee KK, the Defendant's title had no demonstrated root.

p. 4
04

What is the proper disposition where neither party proves a registrable interest

Holding

The court invoked sections 26 and 80 of the Land Registration Act to cancel both titles and register the land in the name of the original allottee, protected by a restriction

Reasoning

Both titles were found to be tangled and without proved roots. The Land Registrar's evidence established the suit land was balloted and allotted to Karanja Kinyua, whose membership register entry and share certificate were uncontroverted. The court cancelled both titles and registered the land in the allottee's name, with a restriction until he or his legal representative collects the title.

p. 5

Legal principles established

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  • Allegations of fraud must be specifically pleaded and strictly proved on a standard above balance of probabilities but below beyond reasonable doubt
  • A registered proprietor whose root of title is challenged must go beyond the title instrument and prove the legality of how the title was acquired

Court orders

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  1. 1.The Plaintiffs suit is dismissed
  2. 2.The counterclaim is dismissed
  3. 3.The Titles in the name of KKK and DWK be and are hereby cancelled
  4. 4.The Title of the suit land be and is hereby registered in the name of Karanja Kinyua ID No 486xxxx/xx
  5. 5.A restriction be and is hereby ordered to be registered on the land until the said KK collects the Title in person and upon identification or the Legal representative does so
  6. 6.Each party to meet their own costs of the suit

Authorities

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Legislation

  • Mental Health Act Cap 258 Laws of Kenyasection 26
  • Evidence Actsection 109
  • Land Registration Actsection 26
  • Land Registration Actsection 80
  • Civil Procedure RulesOrder 2 Rule 10(1)(a) and (2)

Cases cited (2)

  • Koinange & 13 others vs Koinange
    [1968] KLR 23
  • Munyu Maina –Vs- Hiram Gathiha Maina
    Civil Appeal No.239 of 2009
Jurisdiction invoked
Environment and Land Court jurisdiction under the Land Registration Act (sections 26 and 80 invoked for rectification/cancellation of titles)

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, "CNR & another v DWK (suing through her son and Guardian JKK) [2021] KEELC 4636 (KLR)", Case Analysis (2021). ELC No. 210 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4636/eng@2021-01-21

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