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ELCPartially AllowedBungoma Environment and Land Court Civil Suit (amended plaint dated 30th May 2017)· [2022] KEELC 1206 (KLR)

Pharis Wekesa Masibo v Beatrice Manyonge & 4 others [2022] KEELC 1206 (KLR)

Environment and Land Court
14 February 2022
5,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff, registered proprietor of land parcel NO EAST BUKUSU/SOUTH KANDUYI/4106, sued the defendants seeking eviction, a permanent injunction, exhumation of the body of the late Manyonge Waswa buried on the land, and mesne profits. He claimed he purchased the land in 1974 from Daniel Waswa Wamayeye, the 1st defendant's father-in-law, with Land Control approval, obtaining title in January 1989, but was obstructed from possession from 1989. The 1st defendant counter-claimed, alleging the plaintiff forged the transfer documents and fraudulently procured the sub-division and registration, seeking cancellation of register entries. The 3rd, 4th and 5th defendants denied occupying the suit land, claiming to hold portions of other parcels as bona fide purchasers. The court identified four issues, principally whether the plaintiff's title was valid or tainted with fraud. It found the transfer form dated 20th December 1988 was forged - the plaintiff himself admitted the signature was not Daniel Waswa's - and that the sale agreement referenced plot No 9 while the title derived from plot No 4010, with no evidence of identity between them. The plaintiff, who chaired the 1975 Land Control Committee meeting approving a transfer to himself, violated the rule against bias. Fraud was proved to the Vijay Morjaria standard, and under Section 26(1) of the Land Registration Act and Article 40(6) of the Constitution the title was unprotected. The plaintiff's suit was dismissed with costs; the Counter-Claim was allowed with a declaration of fraud and cancellation of entries No 2 to 6, the land reverting to Daniel Waswa Wamayeye.

Key legal issues

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01

Validity of the plaintiff's title to the suit land

Holding

The title is tainted with fraud; the transfer form was forged and the plaintiff admitted Daniel Waswa did not sign it

Reasoning

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.

02

Effect of the plaintiff chairing the Land Control Committee meeting approving transfer to himself

Holding

The plaintiff violated the rule against bias by chairing the meeting that approved the transfer of land in which he had an interest

Reasoning

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.

p. 6
03

Whether the plaintiff proved entitlement to eviction, injunction, exhumation and mesne profits

Holding

Not entitled; the 3rd, 4th and 5th defendants do not occupy the suit land and the plaintiff did not even know them

Reasoning

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.

p. 6
04

The 1st defendant's Counter-Claim for cancellation of register entries

Holding

Allowed; fraud was proved to the required standard

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The plaintiff's suit is dismissed with costs to the 1st, 3rd, 4th and 5th defendants
  2. 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. 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. 4.The plaintiff to meet the 1st defendant's costs of the Counter-Claim

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)
  • Registered Land Act (repealed)Sections 27, 28 and 143
  • Evidence ActSection 60(1)
  • Evidence ActSection 112
  • Constitution of Kenya, 2010Article 40(6)

Cases cited (3)

  • R. v. Rand
    1966 L.R Q B 230
  • Vijay Morjaria v Nansingh Madhusing Darbar & Another
    2000 eKLR
  • Munyu Maina v Hiram Gathiha Maina
    C.A Civil Appeal No 239 of 2009 [2013] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land parcel NO EAST BUKUSU/SOUTH KANDUYI/4106

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, "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.