Aloys Nyamwaro Osoro v Charles Ogoti Arigisi & another [2022] KEELC 1418 (KLR)
The bottom line
#A Kenyan court cancelled a land title obtained through an irregular transfer, proving that even registered titles can be undone when the acquisition process was flawed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff purchased the suit property from Mary Kemunto Morara in the absence of a written sale agreement
The court found, on the balance of probabilities, that the Plaintiff purchased the portion that later became parcel 628 from the deceased in the 1990s and took possession, placing the contract within the proviso to section 3(3) of the Law of Contract Act.
The plaint date of purchase was imprecise (1990 vs 1998), but the evidence of PW1, PW2 and PW3 placed the sale in the 1990s. PW5, the Plaintiff's worker, gave a vivid and credible account of occupation for over seven years until the 1st Defendant's agents demolished his house in 2015. Possession in part performance satisfied the proviso to section 3(3) of the Law of Contract Act, as amended by Act No. 2 of 2002.
Whether the 1st Defendant's title was procured by fraud or was illegally, unprocedurally or through a corrupt scheme acquired
The 1st Defendant's title was invalid, having been acquired illegally, unprocedurally or through a corrupt scheme, and therefore impeachable under section 26 of the Land Registration Act.
Mary Kemunto died on 25.10.2010, yet parcel 628 was transferred to Sandy Morara on 11.11.2014 with no Grant of Letters of Administration, no transfer instrument and no Land Control Board consent. The minutes of 5.6.2007 were neither signed nor certified. Sandy sold to the 1st Defendant the same day she obtained title; the transfer was effected in 8 days with no evidence of payment. The 1st Defendant, whose root of title was under challenge, failed to prove a legal, formal and unbroken chain.
Whether failure to join Sandy Morara (DW2) as a defendant was fatal to the suit
Non-joinder of Sandy Morara was not fatal; the court could deal with the matter as regards the parties actually before it under Order 1 Rule 9 of the Civil Procedure Rules.
The court agreed it would have been desirable to include DW2 given her central role in the irregular transfer, but Order 1 Rule 9 of the Civil Procedure Rules provides that no suit shall be defeated by misjoinder or non-joinder of parties, and the court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
What reliefs the Plaintiff was entitled to
The Plaintiff was entitled to declarations that the 19.11.2014 transfer was null and void and that the parcel belongs to him, cancellation of the 1st Defendant's title with the register rectified to revert the property to the deceased's estate for transmission by her Administrator, a permanent injunction, and general damages of Kshs. 250,000 for trespass.
Having proved the invalidity of the 1st Defendant's title and his trespass, the Plaintiff established his case on a balance of probabilities. However, since the property could only be transferred by the Administrator of the deceased's estate, the register was ordered to revert to the deceased rather than directly to the Plaintiff. General damages of Kshs. 250,000 were awarded, benchmarked against Nakuru Industries Ltd v S.S. Mehta & Sons where Kshs. 500,000 was awarded.
Legal principles established
#- Fraud must be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt.
- A title whose root is under challenge cannot be defended by merely producing the instrument of title; the proprietor must prove the legality of the acquisition process.
- A certificate of title is impeachable under section 26(1)(b) of the Land Registration Act where it was acquired illegally, unprocedurally or through a corrupt scheme, even if the title holder was not party to the vitiating factors.
- A suit shall not be defeated by misjoinder or non-joinder of parties; the court may deal with the matter in controversy as regards the parties actually before it.
- An oral contract for the disposition of an interest in land is enforceable under the proviso to section 3(3) of the Law of Contract Act where the purchaser, in part performance, has taken possession of the property.
Court orders
#- 1.A declaration that the transfer of land parcel number Mwongori Settlement Scheme/628 to the 1st Defendant on 19.11.2014 was unlawful and therefore null and void.
- 2.A declaration that land parcel number Mwongori Settlement Scheme/628 belongs to the Plaintiff.
- 3.Cancellation of the title issued to the 1st Defendant and rectification of the register so that the suit property reverts to the name of Mary Kemunto Morara-Deceased for onward transmission to the Plaintiff by the Administrator of the estate of the deceased.
- 4.A permanent injunction restraining the Defendants, their agents, servants or employees from trespassing on, remaining on, sub-dividing, transferring, fencing, installing beacons, interfering with and/or disturbing the Plaintiff's quiet enjoyment of Mwongori Settlement Scheme/628.
- 5.General damages of Kshs. 250,000 for trespass payable by the 1st Defendant.
- 6.Costs of the suit to be borne by the Defendants jointly and severally.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to land (Article 162(2)(b) of the Constitution and the Environment and Land Court Act - not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aloys Nyamwaro Osoro v Charles Ogoti Arigisi & another [2022] KEELC 1418 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1418/eng@2022-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.