Said v Abdulsheikh & 2 others (Civil Suit 347 of 2017) [2022] KEELC 3178 (KLR)

Environment and Land Court

7 June 2022

MSMunyao Sila

8,953 words in judgment

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The bottom line

What this practically means

Executive summary

The plaintiff sued alleging that the 1st defendant, whom he described as his rent-collection agent, stole his title deeds and fraudulently transferred the two suit properties in Mombasa to himself, charging them to the 2nd defendant bank. He sought a permanent injunction, a declaration that the transfers were fraudulent and their cancellation, re-registration in his name, general damages and costs. The 1st defendant denied theft, asserting he bought both properties in 2010 and 2011 through sale agreements, with the balance of the purchase price financed by the 2nd defendant and paid into the plaintiff's account at that bank; he counterclaimed for vacant possession of Plot No. 136 and mesne profits. The court found the plaintiff's theft theory incredible: the alleged agency began only in 2017, yet the theft was said to have occurred around 2010; the plaintiff never reported the loss to police or placed restrictions on the titles; and evidence showed accounts in his name opened with his own passport through which purchase monies were disbursed and largely withdrawn over the counter. The court found the sale agreements genuine and the contract fully performed. Although the transfer instruments were irregularly attested - the 1st defendant admitted never appearing before the named attesting advocates - the court held cancellation unwarranted because the underlying sale was valid and fully paid, and waived the irregularity. The suit was dismissed with costs to all three defendants. The counterclaim succeeded only in part: vacant possession of Plot No. 136 was ordered within 30 days, reimbursement of rents collected under the injunction undertaking within 30 days, but mesne profits were refused for want of specific pleading and proof, being in the nature of special damages.

Key legal issues

Whether absence of pleaded particulars of fraud renders the suit incompetent

Holding

Not fatal in the circumstances; the plea that the 1st defendant stole the documents and transferred them without the plaintiff's involvement was sufficient pleading

Reasoning

The court accepted that fraud is ordinarily required to be specifically pleaded, but held that the essence of the plaintiff's case - theft of documents and transfer without his participation - was itself pleaded and founded a cause of action. The court declined to strike out the suit for want of precise particulars and proceeded to determine which of the conflicting versions was more probable on a balance of probabilities.

p. 9

Whether the plaintiff sold the suit properties to the 1st defendant

Holding

Yes; the plaintiff's claim of theft of documents was disbelieved and the sale found to have been bona fide and fully paid

Reasoning

The court found the plaintiff's agent theory untenable (he stated the agent relationship began in 2017 yet alleged theft in 2010), found it incredible that he never noticed loss of titles and passport for seven years, noted his failure to report to police or place restrictions on titles, noted he produced no evidence of collecting rent or paying rates from 2010 to 2017, and found he had an account with the 2nd defendant opened with his passport through which purchase price monies were paid and withdrawn.

Whether the transfer instruments were fraudulently attested and whether the title should be cancelled

Holding

The instruments were irregularly dealt with (transfers not attested by the named advocates) but not fraudulently drawn; cancellation was declined because the underlying sale was valid and fully paid

Reasoning

The 1st defendant candidly admitted he never appeared before the advocates named as attesting witnesses (Kaburu and Mwahunga), having signed before the bank's advocate Murshid. This was an irregularity that could lead to cancellation, but since the court found the properties were properly sold and fully paid for, there was no purpose in cancelling the title and reverting the properties to the plaintiff. The court waived the irregularity and declared the 1st defendant owner.

p. 13

Whether the 1st defendant's counterclaim for vacant possession and mesne profits should succeed

Holding

Vacant possession of Plot No. 136 granted within 30 days; mesne profits refused for want of proof; rents collected under the injunction undertaking to be reimbursed

Reasoning

As registered proprietor, the 1st defendant deserved vacant possession. Mesne profits failed because no amount was pleaded or proved and the court could not pluck a figure from the air. The plaintiff had given an undertaking of 17 October 2018 to reimburse rents collected if he lost, and was ordered to make it good within 30 days, failing which the 1st defendant could apply for accounts.

Legal principles established

It is sufficient, in a case founded on theft and irregular transfer of title, for a plaintiff to plead that his documents were stolen and transferred without him; precise particulars of fraud are not fatal in the circumstances
Mesne profits are in the nature of special damages and must be specifically pleaded and proved
An irregularity in the attestation of transfer instruments, absent fraud and where the underlying sale was bona fide and fully paid, does not warrant cancellation of the transferee's title

Court orders

1.The plaintiff's suit is dismissed with costs to all three defendants
2.The plaintiff to give vacant possession of Plot No. Mombasa/Block XVII/136 within 30 days of the judgment, in default the 1st defendant at liberty to evict him in accordance with the law
3.The plaintiff to make good his undertaking to reimburse the 1st defendant the rents collected from the time of the injunction orders within 30 days, failing which the 1st defendant at liberty to apply for accounts and execute
4.From the date of judgment the 1st defendant is entitled to collect rent from the suit properties
5.The 1st defendant's counterclaim allowed to that extent with costs against the plaintiff

Authorities

Legislation

Land ActSection 38
Civil Procedure RulesOrder 2 Rule 2

Cases cited (6)

Adrian Gilbert Muteshi v William Samoei Ruto & 4 others
[2013] eKLR
Koinange & 13 others v Koinange
[1986] eKLR 23
Omullo v Small Enterprises Finance Company Limited & another
[2005] 1 KLR 668
Vijay Morjaria v Nansingh Madhusingh Darbar & another
Civil Appeal No. 106 of 2000
Evans Otieno Nyakwana v Cleophas Bwana Ongaro
[2015] eKLR
Kuria Kiarie & 2 others v Sammy Magera
Nairobi Civil Appeal No. 326 of 2017

Jurisdiction invoked: Original jurisdiction of the Environment and Land Court over land parcels Mombasa Block XXIX/76 and Mombasa/Block XVII/136

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Said v Abdulsheikh & 2 others (Civil Suit 347 of 2017) [2022] KEELC 3178 (KLR)", Case Analysis (2022). Civil Suit No 347 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3178/eng@2022-06-07

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