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ELCPartially AllowedNot stated in the judgment (Plaint dated 19th January, 2015)· [2022] KEELC 2252 (KLR)

Nteresian v District Land Registrar Narok & 3 others (Environment & Land Case 111 of 2017) [2022] KEELC 2252 (KLR)

Environment and Land Court
18 May 2022
4,775 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a landowner's title after proving it was obtained through fraud, returning the land to the original owner.

What this practically means

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Executive summary

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The plaintiff, born and resident on LR CIS Mara/Kojonga/1056, sued for a declaration that he holds true title, alleging he was allocated the land in 1979 by the Kojonga Adjudication Section Committee, that objection and arbitration proceedings in the 1990s were decided in his favour, and that the 1st, 3rd and 4th defendants colluded to dispossess him after the District Commissioner's appeal decision of 1st November 2012 awarded the land to the 4th defendant, who was then issued a title. The 4th defendant, the registered owner, counterclaimed for an injunction, eviction and mesne profits of Kshs. 150,000/=. At trial the plaintiff testified he had lived on and developed the land since birth and produced the committee's decisions, a payment receipt and an official search. The Land Registrar's witness conceded the plaintiff was the first registered proprietor, and the adjudication officer confirmed the objection and arbitration board outcomes favoured the plaintiff before the appeal to the Deputy County Commissioner changed the record. The court found the 4th defendant's evidence riddled with contradictions - inconsistent dates of allocation, and denials of residence or cultivation contradicted by his own witnesses and by the appeal judgment. Applying the strict standard for proving fraud and Section 26 of the Land Registration Act, the court held the plaintiff had proved fraud on the part of the 3rd and 4th defendants, vitiating the 4th defendant's title. The plaintiff's suit partially succeeded in terms of prayer (a): the land was declared wholly owned by the plaintiff, the 4th defendant's titles declared null and void, and the register ordered rectified. The Defence and Counterclaim were dismissed. Costs were awarded against the 3rd and 4th defendants.

Key legal issues

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01

Whether the 4th Defendant's title was procured by fraud

Holding

Yes - the Plaintiff proved, on a balance higher than a balance of probabilities, fraud on the part of the 3rd and 4th defendants, vitiating the 4th Defendant's title.

Reasoning

The court found the 4th defendant's evidence riddled with contradictions: he first said land was allocated in 1979, later that he applied in 1986; he denied ever living on or cultivating the land, yet relied on the Minister's appeal judgment which found he had lived there and made developments. Witnesses also contradicted each other on residence and boundaries. The Plaintiff's evidence that he was allocated and occupied the land was unrebutted, and there appeared misrepresentation of facts in the appeal to the Minister.

p. 8
02

Whether the Minister's/Deputy County Commissioner's appeal decision of 1st November 2012 bound the Plaintiff

Holding

The Plaintiff was entitled to challenge the resulting title in this suit; the 4th defendant himself had lost the objection proceedings and the court did not treat the Minister's decision as an insuperable bar, while noting the 4th defendant had lost his appeal rights by 1992.

Reasoning

The 4th defendant argued the Minister's decision under Section 29(1) of the Land Adjudication Act was an administrative action challengeable only by judicial review, and that the suit was filed late. The court instead examined the adjudication history, found the objection and arbitration board decisions in the Plaintiff's favour, found misrepresentation in the appeal to the Minister, and concluded the resulting title was fraudulent. It also noted the 4th defendant had himself lost the right to appeal an objection within the statutory 60 days from 1992.

p. 8
03

Whether the Plaintiff was entitled to the declaratory relief and rectification of the register

Holding

Yes - judgment entered in terms of prayer (a): declaration of ownership, titles of the 4th defendant declared null and void, cancellation and rectification of the register in the Plaintiff's favour.

Reasoning

Having found fraud proved against the 3rd and 4th defendants, the court held the certificate of title could be challenged under Section 26 of the Land Registration Act. The unrebutted evidence of allocation, occupation and development by the Plaintiff, the committee and arbitration decisions in his favour, and the contradictions in the 4th defendant's case justified the declaration and rectification. Prayer (a) was granted; the Defence and Counterclaim were dismissed.

p. 8

Legal principles established

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  • Allegations of fraud must be strictly proved to a standard higher than a mere balance of probabilities though below proof beyond reasonable doubt.
  • A certificate of title under Section 26 of the Land Registration Act is prima facie evidence of indefeasible ownership but may be challenged on the ground of fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme.

Court orders

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  1. 1.A declaration that Land Reference Number CIS Mara/Kojonga/1056 is wholly owned by the Plaintiff who holds true title, and that the 4th Defendant's titles and claims are fraudulent, null and void, and the 1st defendant be ordered to cancel the same and rectify the register to read the Plaintiff as the registered owner.
  2. 2.Costs of the suit to be borne by the 3rd and 4th defendants.

Authorities

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Legislation

  • Land Adjudication ActSection 29(1); Section 26
  • Land Registration ActSection 26(1)
  • Evidence ActSection 107
  • Constitution of KenyaArticle 40(1)(a)(b)

Cases cited (9)

  • Arthi Highway Developers Limited vs West End Butchery Limited & Others
    Civil Appeal No. 246 of 2013
  • Munyu Maina versus Hiram Gathiha Maina
    Civil Appeal Number 239 of 2009
  • R.G Patel versus Lalji Makanji
    (1957) E.A 314-317
  • Alfred Sagero Omweri versys Kennedy Omweri Ondieki
    [2015] eKLR
  • Ndege Kabibi Kimanga & Another versus Karinga Gaciani & 12 Others
    [2016]
  • Ndolo versus Ndolo
    (2008)1 KLR (G&F)742
  • Onesmus Daniel Masukumbo & Others versus Augustine Baya Thotho
    [2019] eKLR
  • Kinyanjui Kamau versus George Kamau
    [2015] eKLR
  • Koinange & 13 Others v. Charles Karuga Koinange
    1986 KLR
Jurisdiction invoked
Original civil jurisdiction over a dispute on title to land (suit by way of Plaint; no specific constitutional/statutory provision cited for jurisdiction)

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, "Nteresian v District Land Registrar Narok & 3 others (Environment & Land Case 111 of 2017) [2022] KEELC 2252 (KLR)", Case Analysis (2022). Not stated in the judgment (Plaint dated 19th January, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2252/eng@2022-05-18

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