Safaricom Limited v Josenga Company Limited & 4 others (Environment & Land Case 278 of 2017) [2022] KEELC 2665 (KLR)
The bottom line
#The court upheld Safaricom's registered lease and right of way, dismissing a neighbour's fraud claim that lacked concrete survey evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether parcels Makuyu/Makuyu/Block 1/5991 and 1/5993 were legally created
The parcels were legally created; the subdivision was consented by the Land Control Board, procedurally registered and unchallenged, and the 2nd Defendant failed to prove fraud to the required standard
The court found the 3rd Defendant subdivided parcel 5308 with Land Control Board consent and due registration, as confirmed by the Land Registrar. Fraud having been specifically pleaded still had to be strictly proved; the 2nd Defendant produced no beacon certificate or surveyor's report, and the Mutation Form showed an access path to parcel 5993, negating her trespass allegation.
Whether the 2nd Defendant's Counterclaim and Crossclaim were merited
Dismissed entirely for failure to establish fraud, though the 2nd Defendant was left free to pursue the vendor for the shortfall in acreage
The claims rested wholly on alleged fraud which was not proved. The court noted her title 5992 measured less than the 3 acres purchased, and observed she may pursue specific performance or damages against the appropriate party, but that did not sustain the counterclaim.
Whether the Plaintiff was entitled to the prayers in the Plaint
Yes; the Plaintiff's registered Lease over parcel 5993 was lawful and deserving of protection, and judgment was entered on the injunction prayer
The Lease with the 1st Defendant was duly executed and registered, evidenced by the Green Card. The 2nd Defendant's competing claim being unfounded, her denial of access was unjustified and the Plaintiff's registered leasehold interest warranted protection by injunction.
Legal principles established
#- Fraud must be specifically pleaded and distinctly proved to a standard higher than the balance of probabilities; a title may only be impeached on grounds of fraud or misrepresentation to which the proprietor is a party, or where it was acquired illegally, unprocedurally or through a corrupt scheme
- Only a court of law has mandate to cancel a title to land on the basis of fraud or illegality, by way of rectification under section 80 of the Land Registration Act
Court orders
#- 1.Judgment entered for the Plaintiff against the Defendants jointly and severally as prayed in the Plaint in terms of prayer No. 1 only (permanent injunction restraining interference with the Plaintiff's access to the Base Transmitter Station and right of way over Makuyu/Makuyu/Block 1/5993)
- 2.The 2nd Defendant's Counterclaim and Crossclaim dismissed entirely
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act (court of first instance over land disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Safaricom Limited v Josenga Company Limited & 4 others (Environment & Land Case 278 of 2017) [2022] KEELC 2665 (KLR)", Case Analysis (2022). ELC Case No. 278 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2665/eng@2022-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.