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ELCAllowedELC Constitution Petition No. 32 of 2020 (Formerly HCCC MBA No. 05 of 2019)· [2022] KEELC 1160 (KLR)

Mohamed Shally Sese (Suing as the Administrator of the Estate of the Late Shali Sese) v Edward Mzee Karezi & 8 others [2022] KEELC 1160 (KLR)

Environment and Land Court of Kenya
16 February 2022
13,814 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court cancelled fraudulently obtained land titles in Mombasa, ruling buyers must investigate a property's history, not just do an official search.

What this practically means

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Executive summary

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The Petitioner, administrator of the estate of the late Shali Sese, petitioned the Environment and Land Court at Mombasa alleging that the 1st Respondent, entrusted by the deceased's illiterate brother to pursue registration of LR No. 17835, Kilifi, fraudulently registered the land in his own name with the assistance of the then Land Registrar, sub-divided it into seven plots and transferred them to the 2nd, 3rd and 4th Respondents, who claimed to be bona fide purchasers. The family, in occupation since 1954, was evicted in 2005 without notice. The National Land Commission had revoked the titles in 2013, but that decision was quashed by the High Court in Judicial Review Nos. 74 and 75 of 2013, prompting this constitutional petition. The court framed five issues and held the Petition met the Anarita Karimi Njeru threshold of precision. It found the 1st Respondent's acquisition fraudulent - evidenced by the unrebutted affidavit of James Kajwani Mzungu, the absence of any ground report, deed plan or county consents, and the failure to alter his age on the forged documents. The purchasers were held not to be bona fide purchasers for value without notice, since an official search is not conclusive and they failed to investigate the root of title. Relying on Section 80 of the Land Registration Act and Munyu Maina v Hiram Gathiha Maina, the court declared the Petitioner beneficial owner, ordered cancellation of all titles and issuance of fresh titles to the Petitioner, a three-month eviction notice under Section 152E, and, in the alternative, compensation of Kshs. 175,000,000 by the 1st, 6th and 7th Respondents, with general damages for mental stress. Costs were awarded to the Petitioner against all Respondents.

Key legal issues

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01

Adequacy of the pleading of the constitutional petition

Holding

The Petition met the Anarita Karimi Njeru threshold of reasonable precision.

Reasoning

Applying the standards in Anarita Karimi Njeru as restated in Mumo Matemu, the court was satisfied that the Petitioner pleaded with reasonable precision the facts complained of, the constitutional provisions said to be infringed, and the manner of infringement. The court stressed that pleadings give fair notice of the issues and are a tenet of substantive justice.

p. 10
02

Fraudulent acquisition of title by the 1st Respondent

Holding

The 1st Respondent fraudulently and unlawfully acquired the title to LR No. 17835 which belonged to the deceased, with the assistance of the then Land Registrar.

Reasoning

The court relied on the detailed affidavit of James Kajwani Mzungu describing how names were erased with white-out and substituted, the unexplained absence of any ground report or deed plan, lack of consents from the County Government of Kilifi, the forced eviction without notice, police inaction, and the failure of the 1st Respondent to alter his age on the forged documents - evidence never rebutted by the Respondents.

p. 14
03

Whether the purchasers were bona fide purchasers for value without notice

Holding

The 2nd and 3rd Respondents failed to establish bona fide purchaser status; a mere official search is insufficient diligence where the root of title is suspect.

Reasoning

Citing Katende v Haridar and the Drive-In Primary School authority, the court held that searches are not conclusive of ownership. Given the long occupation by the deceased's family since 1954, the evictions, complaints to the Ministry of Lands and police, and the numerous court cases over the land, the purchasers could not plead ignorance and ought to have inquired into the historical root of the 1st Respondent's title. Since the 1st Respondent had no good title, he could pass none.

p. 14
04

Rectification of the register

Holding

The court invoked Section 80(1) and (2) of the Land Registration Act to order cancellation of the fraudulent titles and issuance of fresh titles to the Petitioner as administrator of the deceased's estate.

Reasoning

Section 80 permits rectification where registration was obtained by fraud or mistake. Having traced the root of title to the deceased, whose family occupied the land from 1954 and whose application to the President and Ministry of Lands preceded his death, the court found it impossible to connect the 1st Respondent's registration to lawful acquisition and ordered rectification in favour of the estate.

Legal principles established

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  • Where the root of a registered title is challenged, the registered proprietor must prove the legality of how the title was acquired, beyond merely producing the instrument of title.
  • A certificate of title is prima facie evidence of ownership but is subject to challenge on the ground of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme.
  • An official search is not conclusive evidence of ownership; a purchaser must go further and investigate the history and root of the title.
  • A constitutional petition must set out with reasonable precision the complaint, the provisions said to be infringed, and the manner of infringement.

Court orders

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  1. 1.A declaration that the Petitioner, as duly appointed legal Administrator of the Estate of the late Shali Sese, is legally and absolutely registered the beneficial owner of all the seven acres of land severally registered as Plots originating from No. 17835 currently in the names of Fulson Company Limited, Edward Mzee Karezi, Kilifi Beach Properties Limited, Chiera Waithaka and the Van Dijcks
  2. 2.An order directing the Chief Land Registrar, pursuant to Section 80(1) and (2) of the Land Registration Act, to forthwith cancel and revoke all the certificates of title deeds for the above stated parcels of land
  3. 3.An order that in lieu thereof the Chief Land Registrar issue fresh certificates of title for all the said parcels in the names of the Petitioner, Mohamed Shali Sese, as legal Administrator of the estate of the late Shali Sese
  4. 4.Direction that the Petitioner issue all Respondents unlawfully in physical occupation of the suit land with a three (3) months eviction notice in English and Kiswahili pursuant to Section 152E of the Land Act, No. 6 of 2012, served and/or printed in block letters on a board planted on the land
  5. 5.Direction that the County Commander of Police, County of Mombasa, and the Officer in Charge of Kilifi Police Station ensure the orders are strictly adhered to and complied with
  6. 6.An alternative order that the 1st, 6th and 7th Respondents compensate the Petitioner the sum of Kshs. 175,000,000 as adequate and fair compensation for the loss of land
  7. 7.An award of general damages to the estate of the deceased for mental stress and torture and suffering from the violation, denial and threat of their fundamental rights
  8. 8.Costs of the suit awarded to the Petitioner, to be borne by the 1st to 11th Respondents
Jurisdiction invoked
Environment and Land Court Act, No. 19 of 2012, Section 13(1) (suit transferred from the High Court); Articles 10, 22, 23, 27, 28, 35, 40, 48 & 50 of the Constitution

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, "Mohamed Shally Sese (Suing as the Administrator of the Estate of the Late Shali Sese) v Edward Mzee Karezi & 8 others [2022] KEELC 1160 (KLR)", Case Analysis (2022). ELC Constitution Petition No. 32 of 2020 (Formerly HCCC MBA No. 05 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1160/eng@2022-02-16

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