Shaawa Enole Koriata & another v Stephen Kaitet Koriata & 2 others [2022] KEELC 615 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a land title obtained by tricking an illiterate man into signing a sale agreement he believed was a lease.
What this practically means
#Executive summary
#Key legal issues
#Whether the transfer of the suit land to the 1st Defendant was fraudulent
Yes. The deceased Plaintiff, who could neither read nor write, was misled into signing a sale agreement believing it to be a lease agreement; consent was thus totally lacking and the transaction was fraudulent. No cogent evidence proved the full purchase price was paid.
The court applied the non est factum principles from Josephine Mwikali Kikenye v Omar Abdalla Kombo, holding that a signature is invalid where the mind of the signer did not accompany it. PW2 and PW3, the Plaintiff's own sons, admitted they deceived their father into signing a sale agreement while he believed he was signing a lease. The evidence that the Plaintiff could neither read nor write was uncontroverted, and the 1st Defendant failed to prove payment of the balance of Kshs. 1,250,000/-, having produced no admissible bank statements. Spousal consent was admittedly never obtained.
Whether the title deed for CISMARA/LEMEK/3921 should be cancelled
Yes. Since fraud was proved and spousal consent was never sought or obtained, the title issued to the 1st Defendant had to be cancelled and re-issued in the name of the deceased Plaintiff.
Relying on sections 26(1) and 80 of the Land Registration Act as submitted by the Plaintiffs, the court held that the protection of indefeasibility falls away where a title is acquired by fraud. Having found the sale and transfer fraudulent and the absence of spousal consent admitted by both parties, the court concluded the title could not stand and directed the Land Registrar to cancel and re-issue it in the Plaintiff's name.
Standard of proof applicable to allegations of fraud
Fraud must be pleaded and strictly proved to a standard higher than the balance of probabilities, though below the criminal standard.
The court adopted the Court of Appeal's decision in Kinyanjui Kamau v George Kamau and Ndolo v Ndolo, which require that a serious charge of fraud be proved to a standard above ordinary civil proof but not beyond reasonable doubt. The court then found on the evidence - particularly the admissions of PW2 and PW3 and the failure to prove payment of the purchase price - that this heightened standard was met.
Legal principles established
#- Allegations of fraud must be pleaded and strictly proved to a standard above a balance of probabilities but not beyond reasonable doubt.
- Where a party pleading non est factum establishes that the transaction effected by the signed document is essentially different in substance from the transaction intended, consent is totally lacking and the document is void.
- Spousal consent under section 79(3) of the Land Act, 2012 is a pre-condition to dispositions of land and its absence vitiates a sale and transfer.
- A title obtained by fraud or misrepresentation to which the registered owner was a party is defeasible notwithstanding the indefeasibility provisions of the Land Registration Act.
Court orders
#- 1.A permanent injunction restraining the 1st Defendant, his servants and/or agents from interfering with the Plaintiff's right to possession and quiet enjoyment of CISMARA/LEMEK/3921
- 2.An order directed at the 2nd Defendant to cancel the title deed for CISMARA/LEMEK/3921 in the name of the 1st Defendant and re-issue the same in the name of the Plaintiff, Karino Ole Koriata
- 3.An order directed at the 1st Defendant to vacate parcel No. CISMARA/LEMEK/3921 and surrender vacant possession to the Plaintiff within thirty (30) days from the date of judgment
- 4.Costs of the suit to the Plaintiff plus interest at court rates
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shaawa Enole Koriata & another v Stephen Kaitet Koriata & 2 others [2022] KEELC 615 (KLR)", Case Analysis (2022). ELC Case No. 80 of 2017 (formerly Nakuru ELC No. 258 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/615/eng@2022-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.