Samuel Chege Kamunge v Josphat Chege & 8 others [2022] KEELC 277 (KLR)
The bottom line
#The Environment and Land Court cancelled fraudulently obtained titles because the supposed seller had died years before the transfers were registered.
What this practically means
#Executive summary
#Key legal issues
#Whether the deceased transferred the suit properties
The deceased did not transfer Kijabe/Kijabe Block 1/12640, 12641 and 12630 to the defendants; registrations occurred at least two and a half years after her death and no transfer signed by her was produced
The certified register confirmed the deceased owned the parent title. The mutation and register showed subdivision registered on 22nd May 2014 in her name, but the impugned transfers were registered in June 2014 and February 2015, long after her death on 13th October 2011. No defendant produced any transfer executed by the deceased, so the court found no valid transfer by her.
Whether the transfers of plots 12640, 12641 and 12630 to the 6th and 4th defendants were fraudulent
The transfers were fraudulent; the 4th and 6th defendants failed to demonstrate their root of title
Parties claiming through transfer bear a distinct obligation to prove valid transfers and titles under sections 37(2) and 44 of the Land Registration Act. The defendants produced no transfer documents or Land Control Board consents; the registrations post-dated the owner's death by years; and the 4th defendant paid the 1st defendant to procure a title. Accordingly, fraud was proved to the required standard.
Whether the 6th defendant is a bona fide purchaser for value without notice
He is not; he conducted no due diligence and the transaction was completed in six days
The 6th defendant admitted he made no further enquiries into ownership, produced no transfer or Land Control Board consent supporting his vendor's title, and completed the transaction within six days, an unusually short period inconsistent with due diligence. Since the transfers to him were fraudulent, he could not qualify as a bona fide purchaser for value without notice.
Whether the 3rd defendant is entitled to transfer of LR No Kijabe/Kijabe/Block 1/12628
No; the agreement was incomplete and he failed to prove entitlement, so the counterclaim fails
Although the handwritten agreement met the formal requirements of section 3(3) of the Law of Contract Act and section 38 of the Land Act, it did not describe the property sold or refer to the parent title, and the size stated was three times the plot now claimed. He failed to call supporting witnesses and did not demonstrate entitlement to transfer; his counterclaim was dismissed.
Legal principles established
#- When a registered proprietor's root of title is under challenge, the proprietor must go beyond the title instrument and prove the legality of the acquisition
- Fraud must be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt
- A bona fide purchaser must prove a valid and legal title, due diligence, and payment of valuable consideration
- A title can be nullified on the ground of fraud or misrepresentation to which the registered proprietor is a party, or if acquired illegally, unprocedurally or through a corrupt scheme
Court orders
#- 1.The 3rd defendant's counterclaim is dismissed
- 2.An injunction restraining the 3rd, 4th, 5th and 6th defendants from entering, constructing, erecting, transferring or in any adverse manner interfering with LR numbers Kijabe/Kijabe Block 1/12628, 12630, 12631, 12640 and 12641
- 3.An order of injunction restraining the 1st and 7th defendants from entering, erecting, transferring or in any adverse manner interfering or dealing with LR numbers Kijabe/Kijabe Block 1/12621 to 12641
- 4.The 4th and 6th defendants' titles in respect of LR numbers Kijabe/Kijabe Block 1/12640, 12641 and 12630 are cancelled
- 5.An order directing the Naivasha District Land Registrar (8th defendant) to effect rectification of the register and cancellation of the 4th and 6th defendants' titles in respect of LR numbers Kijabe/Kijabe Block 1/12640, 12641 and 12630
- 6.Judgment entered in favour of the estate of Ruth Wanjiru Kamunge (deceased) against the 3rd defendant for KShs 50,000 being damages for trespass
- 7.The 3rd defendant to remove any structures he has constructed on LR number Kijabe/Kijabe Block 1/12628 within 90 days from delivery of the judgment, failing which the plaintiff may remove them
- 8.The estate of Ruth Wanjiru Kamunge (deceased) shall have costs of the suit, borne by the 1st defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act); suit commenced by plaint
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Chege Kamunge v Josphat Chege & 8 others [2022] KEELC 277 (KLR)", Case Analysis (2022). Not stated in the judgment extract (originate from plaint dated 21st October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/277/eng@2022-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.