Catherine Njeri Ngunjiri & 2 others v Attorney General & 2 others [2022] KEELC 1990 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a fraudulently issued land title and ordered the register rectified, confirming that fraudulent registrations can be undone.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof where the defendant does not testify
Although the defendants' defences remained mere allegations without evidence, the plaintiff still had to prove its case on a balance of probability, which the court found discharged
The court adopted Gichinga Kibutha v Caroline Nduku that uncontroverted evidence does not automatically carry the day. The defendants filed defences but never testified, so their allegations remained unsubstantiated. Nonetheless, the plaintiffs produced the title deed of 10th April 1990 and auction purchase documents establishing the root of title, satisfying the balance of probability standard.
Applicable land law regime
Rights acquired before the Land Registration Act, 2012 are governed by the repealed Registered Land Act, Cap 300, by virtue of section 107 of the 2012 Act
The suit was filed in 2007 and the plaintiff's rights accrued in 1990, before the Land Registration Act, 2012 came into force. Section 107 of the 2012 Act preserves rights acquired under repealed statutes, so the Registered Land Act (sections 27 and 28), as mirrored in sections 24 and 25 of the new Act, governs the proprietorship rights.
Fraudulent registration of the 3rd Defendant
The 3rd Defendant disowned any participation in the registration; a registration effected without an individual's participation is fraudulent or suspect and ripe for cancellation
Registration requires the individual's participation, including signing the transfer and collecting the title deed. The 3rd Defendant, in his Replying Affidavit, denied knowledge of and participation in the registration. His disowning of the registration, coupled with the 2nd Defendant's admission of a possible omission, rendered the registration fraudulent and without basis, hence null and void.
Rectification and injunction
Under section 80 of the Land Registration Act the court directed cancellation of the 3rd Defendant's title, rectification of the register to reflect the plaintiff, and a permanent injunction against the 3rd Defendant
Having found the registration fraudulent, the court invoked section 80 of the Land Registration Act to order rectification. Because the deceased was the rightful owner, his estate could only enjoy the rights of ownership if the mandatory injunctions issued and the 3rd Defendant was restrained from dealing with the property.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership but may be challenged on grounds of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme
- Pleadings are not evidence; a defendant who files a defence but does not testify leaves the allegations unsubstantiated, yet the plaintiff must still prove its case on a balance of probability
- The Court may order rectification of the register where a registration was obtained by fraud or mistake
Court orders
#- 1.A Declaration that the Plaintiff is the bonafide registered proprietor of L.R No. Ruiru East Block 1/23
- 2.A Declaration that the registration of the 3rd Defendant as registered proprietor of the suit property is fraudulent, illegal, null and void
- 3.A Mandatory Injunctive Order directing the 2nd Defendant to cancel the Title issued to the 3rd Defendant over the suit property
- 4.A Mandatory Injunctive Order directing the 2nd Defendant to rectify the Thika District Land Register to reflect the Plaintiffs as registered proprietors of L.R No. Ruiru East Block 1/23
- 5.An order restraining the 3rd Defendant, his agents, servants and/or employees from entering, interfering with, trespassing on, alienating, wasting, damaging, selling, mortgaging, disposing, transferring or dealing with the suit property
- 6.The Plaintiff awarded costs of the suit
- 7.The Plaintiff awarded interest on the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; registered land under the Land Registration Act, 2012 (s. 80) and the Registered Land Act, Cap 300 (repealed)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Njeri Ngunjiri & 2 others v Attorney General & 2 others [2022] KEELC 1990 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1990/eng@2022-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.