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ELCAllowedELC Case No. 2 of 2021· [2022] KEELC 425 (KLR)

Aspire Limited v Zedka Technical Services Limited & 2 others [2022] KEELC 425 (KLR)

Environment and Land Court
20 April 2022
EOE. Obaga
1,144 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret cancelled a fraudulently backdated land title and confirmed Aspire Limited as the true owner of the Eldoret property.

What this practically means

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Executive summary

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Aspire Limited sued Zedka Technical Services Limited, the Land Registrar Uasin Gishu and the Attorney General seeking a declaration that it is the owner of Eldoret Municipality/Block 8/527, cancellation of a title issued to the 1st Defendant, a permanent injunction and costs. The Plaintiff's evidence, given by one of its directors, was that it purchased the suit property from John Rotich Limo by a sale agreement dated 20th November 2006 for Kshs 2,600,000/=, paid the purchase price including stamp duty of Kshs 104,000/=, obtained a certificate of lease issued on 11th December 2006 and took possession. When the County Government of Uasin Gishu began constructing a walkway next to the property and fencing was challenged, a search on 12th January 2021 revealed a title in the 1st Defendant's name even though no transfer documents existed in the registry. The 1st Defendant did not enter appearance despite substituted service, and the Attorney General abandoned the case, so the suit proceeded ex parte. Applying Arthi Highway Developers Limited v West End Butchery Limited, the court found the 1st Defendant's purported title of 6/8/2013 was backdated and fraudulent since the Plaintiff held the original title and an earlier 2014 search showed it as registered owner. Judgment was entered for the Plaintiff on a balance of probabilities, with a declaration of ownership, an order to the Land Registrar to cancel the fraudulent title and restore the Plaintiff's title, a permanent injunction, and costs payable jointly and severally by the Defendants.

Key legal issues

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01

Whether the Plaintiff proved ownership of the suit property and fraud in the issuance of a title to the 1st Defendant

Holding

The Plaintiff proved its case on a balance of probabilities; the title issued to the 1st Defendant was fraudulent and the court ordered its cancellation and restoration of the Plaintiff's title.

Reasoning

The Plaintiff produced the sale agreement, transfer of lease, certificate of lease, stamp duty receipt, banker's cheque payment and advocate's letters. An official search showed the 1st Defendant registered as owner without any transfer documents in the file, and the 1st Defendant's purported title was dated 6/8/2013 despite the Plaintiff having done a search on 2nd April 2014 showing itself as owner, indicating a backdated title. The uncontroverted evidence established fraud.

p. 2

Legal principles established

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  • A party cannot obtain title to land while the true owner holds the original title; such a title points to fraud

Court orders

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  1. 1.A declaration is hereby made that the Plaintiff is the owner of LR. No Eldoret Municipality/Block/8/527.
  2. 2.The 2nd Defendant is directed to cancel the fraudulent title in favour of the 1st Defendant and restore the Plaintiff's title in its records.
  3. 3.A permanent injunction is hereby issued restraining the 1st Defendant, its agents and servants from interfering with the Plaintiff's parcel known as Eldoret Municipality/Block 8/527.
  4. 4.The costs of this suit shall be borne by the Defendants jointly and severally.

Authorities

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Cases cited (1)

  • Arthi Highway Developers Limited -Vs- West End Butchery Limited & 6 others
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution 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, "Aspire Limited v Zedka Technical Services Limited & 2 others [2022] KEELC 425 (KLR)", Case Analysis (2022). ELC Case No. 2 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/425/eng@2022-04-20

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