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ELCPartially AllowedEnvironment & Land Case 32 of 2020· [2022] KEELC 2587 (KLR)

Kiuna v Mubea & 2 others (Environment & Land Case 32 of 2020) [2022] KEELC 2587 (KLR)

Environment and Land Court
21 July 2022
5,716 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Nakuru court cancelled a fraudulently obtained land title, confirming that a title deed alone does not prove lawful ownership in Kenya.

What this practically means

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Executive summary

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The Plaintiff, Thomas Njugi Kiuna, sued the 1st Defendant and the Land Registrar alleging that the 1st Defendant, in collusion with officials of the 2nd Defendant, fraudulently acquired his parcel, Nakuru Municipality Block 17/97, which he had purchased from Benard Rono in November 2013 for Kshs. 6,000,000 and registered in his name on 4th September 2014, subject to a Bank of Africa charge. When seeking to register a discharge of charge, he discovered the white card showed the 1st Defendant as owner since 30th November 2007. The 1st Defendant, though served, never entered appearance; the 2nd and 3rd Defendants filed a defence but called no evidence. The court framed five issues and held that fraud must be pleaded and strictly proved on a standard above balance of probability but below beyond reasonable doubt, which standard the Plaintiff met. The 2nd Defendant, which registered both titles, offered no explanation for the double registration; the court rejected its forgery allegations against the Plaintiff's discharge documents as unproven and immaterial. Relying on Daudi Kiptugen and Munyu Maina, the court found the process of acquisition material and the 1st Defendant's title unexplained, and under section 26 of the Land Registration Act found the title challengeable as illegally and fraudulently acquired. Judgment was entered for the Plaintiff: a declaration of ownership, rectification of the register deleting the 1st Defendant's name and restoring the Plaintiff, a permanent injunction against the 1st Defendant, and costs with interest from the date of judgment. The alternative prayer for compensation was declined as baseless and superfluous.

Key legal issues

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01

Whether the suit parcel was fraudulently transferred to the 1st Defendant

Holding

Yes - the parcel was illegally and fraudulently transferred to the 1st Defendant

Reasoning

The Plaintiff traced his acquisition from Benard Rono through purchase, transfer and registration of charge, all evidenced and registered by the 2nd Defendant. The 2nd Defendant, custodian of land records and the authority that registered both titles, called no evidence to explain how the parcel came to be registered in the 1st Defendant's name in 2007. The 1st Defendant offered no explanation either, leaving the Plaintiff's evidence uncontroverted and satisfying the heightened standard for proving fraud.

p. 9
02

Whether the Plaintiff should be declared lawful owner

Holding

Yes - the Plaintiff is declared the lawful owner of the suit parcel

Reasoning

The Plaintiff's evidence of acquisition was uncontroverted and plausible. Rono was registered owner from 1997, before the alleged registration to the 1st Defendant in 2007. The 1st Defendant, given the opportunity to explain his acquisition, chose not to. Citing Munyu Maina v Hiram Gathiha Maina, the court held that a proprietor with an impugned title must prove legality of acquisition beyond dangling the title instrument.

p. 11
03

Whether the certificate of lease issued to the 1st Defendant should be cancelled

Holding

Yes - an order of cancellation should issue, rectifying the register and restoring the Plaintiff

Reasoning

Section 26 of the Land Registration Act confers prima facie indefeasibility, but title may be challenged on the ground of fraud or where acquired illegally, unprocedurally or through a corrupt scheme. Having found fraud and illegality in the 1st Defendant's registration, the court found no doubt that cancellation of the certificate of lease should issue.

p. 11
04

Whether the Plaintiff was entitled to compensation in the alternative

Holding

No - compensation was declined

Reasoning

The Plaintiff laid no basis for compensation in pleadings or submissions, and the findings on fraud, ownership and cancellation made the alternative prayer superfluous.

p. 11

Legal principles established

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  • Allegations of fraud must be pleaded and strictly proved on a standard higher than balance of probability but lower than beyond reasonable doubt
  • The process of acquisition of title is material; a title not acquired through proper process is not good title
  • A registered proprietor whose root of title is under challenge must prove the legality of how he acquired the title

Court orders

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  1. 1.A Declaration is hereby issued that the Plaintiff is the rightful owner of Nakuru Municipality Block 17/97
  2. 2.The Land Registrar, 2nd Defendant, shall rectify the register of Land parcel No. Nakuru Municipality Block 17/97 by deleting the 1st Defendant's names and restoring the names of the Plaintiff
  3. 3.An order of permanent injunction is hereby issued restraining the 1st Defendant either by himself, servants and/or agents from entering, alienating, selling, transferring, leasing, disposing and/or interfering in any manner whatsoever with the property known as Nakuru Municipality Block 17/97
  4. 4.The Plaintiff shall have costs of this suit and interest thereon from the date of judgment until payment in full

Authorities

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Legislation

  • Land Registration ActSection 26
  • Land Registration ActSection 80 and 80(2)
  • Land Registration ActSection 81
  • Civil Procedure Act (Cap. 21)Section 27
  • Evidence ActSections 107 and 108
  • Constitution of KenyaArticle 40
  • Registration of Titles Act (repealed)Section 23(1)

Cases cited (18)

  • Moses Parantai & Persis Wanjiku v Stephen Njoroge Macharia
    Civil Appeal No. 411 of 2018; (2020) eKLR
  • Joseph Arap Ngok v Justice Moyo Ole Keiwa & 5 Others
    Civil Appeal No. Nairobi 60 of 1997
  • Central Bank of Kenya Ltd v Trust Bank Limited & 4 Others
    (1996) eKLR
  • Katende v Haridar and Co. Limited
    [2008] 2 E.A 173
  • Moi Education Center Co. Ltd v William Musembi & 16 others
    (2017) eKLR
  • Kinyanjui Kamau v George Kamau
    [2015] eKLR
  • Ndolo v Ndolo
    (2008) 1 KLR (G & F) 742
  • Daudi Kiptugen v Commissioner of Lands Nairobi Lands & 4 others
    [2015] eKLR
  • Board of Trustee Meru Diocese Kirimara Parish v Dores Wanja Bore
    [2020] eKLR
  • Peter Ngigi & Another v Thomas Ondiki Oduor & Another
    2019 eKLR
  • Shaneebal Limited v County Government of Machakos
    [2018] eKLR
  • Trust Bank Limited v Paramount Universal Bank Limited & 2 Others
    Nairobi (Milimani) HCCS No. 1243 of 2001
  • Janet Kaphiphe Ouma & Another v Marie Stopes International (Kenya)
    Kisumu HCCC No. 68 of 2007
  • Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Interchemie EA Limited v Nakuru Veterinary Centre Limited
    Nairobi (Milimani) HCCC No. 165B of 2000
  • Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another
    [2016] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Jabir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    SC. Petition No. 4 of 2012: [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction; Land Registration Act (sections 26, 80, 81) and Civil Procedure Act (section 27)

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, "Kiuna v Mubea & 2 others (Environment & Land Case 32 of 2020) [2022] KEELC 2587 (KLR)", Case Analysis (2022). Environment & Land Case 32 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2587/eng@2022-07-21

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