Pharis Wekesa Masibo v Beatrice Manyonge & 4 others [2022] KEELC 1206 (KLR)
The bottom line
#The Bungoma Environment and Land Court cancelled a land title obtained through forged transfer documents, proving Kenya's title deeds can be challenged and revoked.
What this practically means
#Executive summary
#Key legal issues
#Validity of the plaintiff's title to the suit land
The title is tainted with fraud; the transfer form was forged and the plaintiff admitted Daniel Waswa did not sign it
The court compared the signature on the sale agreement with that on the transfer form dated 20th December 1988 and found stark differences. The plaintiff conceded in cross-examination that the signature was not that of Daniel Waswa. Further, the sale agreement referenced plot No 9 while the title derived from plot No 4010, with no evidence they were the same parcel. The forged transfer renders the title impeachable under Section 26(1) of the Land Registration Act.
Effect of the plaintiff chairing the Land Control Committee meeting approving transfer to himself
The plaintiff violated the rule against bias by chairing the meeting that approved the transfer of land in which he had an interest
Relying on R v Rand and Halsbury's Laws of England, the court held that the plaintiff, who chaired the 19th November 1975 Land Control Committee meeting approving a transfer to himself, became a judge in his own cause. This reinforced the pleaded particulars of fraud under paragraphs 15(b) and (c) of the Counter-Claim and supported the finding that the resolutions facilitated forged documents and a fraudulent transfer.
Whether the plaintiff proved entitlement to eviction, injunction, exhumation and mesne profits
Not entitled; the 3rd, 4th and 5th defendants do not occupy the suit land and the plaintiff did not even know them
The plaintiff's claim was confined to parcel 4106, but the portions held by the 3rd, 4th and 5th defendants were excised from parcels 17291, 4105 and 17290 respectively. The plaintiff admitted in cross-examination that he did not know these defendants. There was no evidence that they occupy any part of the suit land, so no relief could lie against them.
The 1st defendant's Counter-Claim for cancellation of register entries
Allowed; fraud was proved to the required standard
Having found the plaintiff's title tainted with fraud, the court held the 1st defendant had pleaded and proved the fraud to the standard in Vijay Morjaria v Nansingh Madhusing Darbar. Entries No 2 to 6 in the register of parcel 4106 were ordered cancelled and the land to revert to Daniel Waswa Wamayeye. Article 40(6) protection does not extend to unlawfully acquired property.
Legal principles established
#- A certificate of title is only prima facie evidence of ownership and can be impeached on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
- No person may be a judge in his own cause; direct interest in a matter disqualifies one from adjudicating it
- A registered proprietor whose root of title is under challenge must prove the legality of the acquisition beyond merely producing the title instrument
Court orders
#- 1.The plaintiff's suit is dismissed with costs to the 1st, 3rd, 4th and 5th defendants
- 2.A declaration that the sub-division of land parcels NO EAST BUKUSU/SOUTH KANDUYI/9 & 4010 and the subsequent transfer of parcel 4106 to the plaintiff was irregular, unlawful and fraudulent
- 3.An order cancelling entries No 2, 3, 4, 5 and 6 from the register of land parcel NO EAST BUKUSU/SOUTH KANDUYI/4106 and the same to revert to DANIEL WASWA WAMAYEYE
- 4.The plaintiff to meet the 1st defendant's costs of the Counter-Claim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land parcel NO EAST BUKUSU/SOUTH KANDUYI/4106
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pharis Wekesa Masibo v Beatrice Manyonge & 4 others [2022] KEELC 1206 (KLR)", Case Analysis (2022). Bungoma Environment and Land Court Civil Suit (amended plaint dated 30th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1206/eng@2022-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.